G.R. No.

83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary
of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports;
FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE
V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice; FRANKLIN
N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local
Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as
Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO
ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of
Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and
Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA
MONSOD, as Head of the National Economic Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved jointly as both seek a declaration of
the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the
assailed Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the
Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not more than two positions in the
government and government corporations and receive the corresponding compensation
therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to
boards, councils or bodies of which the President is the Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive

official of the Executive Department holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of the subordinate official who
is next in rank, but in no case shall any official hold more than two positions other than his
primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned or

controlled corporations, at least one-third (1/3) of the members of the boards of such
corporation should either be a secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition
to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13,
Article VII of the 1987 Constitution,2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
 corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members
of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as
Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during
their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No.
284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of
the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order
directing public respondents therein to cease and desist from holding, in addition to their primary
positions, dual or multiple positions other than those authorized by the 1987 Constitution and from
receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant
to their questioned positions, and compelling public respondents to return, reimburse or refund any
and all amounts or benefits that they may have received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of
Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2), Article
IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987,5 declaring that Cabinet members,
their deputies (undersecretaries) and assistant secretaries may hold other public office, including
membership in the boards of government corporations: (a) when directly provided for in the
Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the
Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if
allowed by the primary functions of their respective positions; and that on the basis of this Opinion,
the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July
27, 1987: promulgated Executive Order No. 284.6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive
Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision
in another article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions,
each addressed to a distinct and separate group of public officers one, the President and her
official family, and the other, public servants in general allegedly "abolished the clearly separate,
higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs
for the President, the Vice-President, the members of the Cabinet, and their deputies and
subalterns, who are the leaders of government expected to lead by example."7 Article IX-B, Section
7, par. (2)8 provides:

Sec. 7. . . . . .

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries.

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as
further elucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155,
series of 1988,10 being the first official construction and interpretation by the Secretary of Justice of
Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same
subject of appointments or designations of an appointive executive official to positions other than his
primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284,
promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is
worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988
construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to
positions which, although not so designated as ex-officio are allowed by the primary functions of the
public official, but only to the holding of multiple positions which are not related to or necessarily
included in the position of the public official concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the
principal submission that it adds exceptions to Section 13, Article VII other than those provided in the
Constitution. According to petitioners, by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other office or employment in Government are
those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member
of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the
Civil Service Commission applies to officers and employees of the Civil Service in general and that
said exceptions do not apply and cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the Cabinet and their deputies or
assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the
Cabinet and their deputies or assistants from holding dual or multiple positions in the Government
admits of certain exceptions. The disagreement between petitioners and public respondents lies on
the constitutional basis of the exception. Petitioners insist that because of the phrase "unless
otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be
expressly provided in the Constitution, as in the case of the Vice-President being allowed to become
a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of
Justice being designated an ex-officio member of the Judicial and Bar Council under Article VIII,
Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise
provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article
I-XB insofar as the appointive officials mentioned therein are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the
broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB
which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporation or their subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.11

The practice of designating members of the Cabinet, their deputies and assistants as members of
the governing bodies or boards of various government agencies and instrumentalities, including
government-owned and controlled corporations, became prevalent during the time legislative powers
in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created agencies, instrumentalities and government-
owned and controlled corporations created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries, emoluments, per diems, allowances and
other perquisites of office. Most of these instrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In
fact, the holding of multiple offices in government was strongly denounced on the floor of the
Batasang Pambansa.12 This condemnation came in reaction to the published report of the
Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and
Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4
a "Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations
as of December 31, 1983."

Particularly odious and revolting to the people's sense of propriety and morality in government
service were the data contained therein that Roberto V. Ongpin was a member of the governing
boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R.
Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15);
Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen
(13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro,
and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10)
each.13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the
Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment
of the people that the 1986 Constitutional Commission, convened as it was after the people
successfully unseated former President Marcos, should draft into its proposed Constitution the
provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from
the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr.
Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of
the 1987 Constitution during the campaign for its ratification was the assurance given by its
proponents that the scandalous practice of Cabinet members holding multiple positions in the
government and collecting unconscionably excessive compensation therefrom would be
discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a
blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission should see it
fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-
President, members of the Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was to impose a stricter prohibition on the
President and his official family in so far as holding other offices or employment in the government or
elsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions
of the Constitution on the disqualifications of certain public officials or employees from holding other
offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of
Representatives may hold any other office or employment in the Government . . .". Under Section
5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be
appointed in any capacity to a civilian position in the Government,including government-owned or
controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by
respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position,
no appointive official shall hold any other office or employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office or employment,
the prohibition pertains to an office or employment in the government and government-owned or
controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article
VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office
or employment during their tenure." In the latter provision, the disqualification is absolute, not being
qualified by the phrase "in the Government." The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said
tenure, directly or indirectly, practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed
on the President and his official family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of the civil service in general
and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to impose upon said class stricter
prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official
family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado
Maambong noted during the floor deliberations and debate that there was no symmetry between the
Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the
Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more powers and, therefore, more
cheeks and restraints on them are called for because there is more possibility of abuse in their
case."14

Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant
to lay down the general rule applicable to all elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section
13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of
the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution
to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other offices or employment in the government
during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions
found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the
framers of the Constitution as to when the high-ranking officials of the Executive Branch from the
President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any other office or
position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under
Section 13 of Article VII is allowed to hold other office or employment when so authorized by the
Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely
ineligible "for appointment or designation in any capacity to any public office or position during his
tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in
Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless
the specific provisions of the Constitution authorizing the Vice-President to become a member of the
Cabinet,15 and to act as President without relinquishing the Vice-Presidency where the President
shall not nave been chosen or fails to qualify.16 Such absurd consequence can be avoided only by
interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB
providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception
thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section
13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is

to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument.17 Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution18 and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.19

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory.20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition
on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect
to holding multiple offices or employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of
the privilege of holding multiple government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation.21 The phrase "unless otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit:
the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII;
or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and,
the Secretary of Justice being ex-officiomember of the Judicial and Bar Council by virtue of Section 8
(1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of
the Constitution must not, however, be construed as applying to posts occupied by the Executive
officials specified therein without additional compensation in an ex-officio capacity as provided by
law and as required22 by the primary functions of said officials' office. The reason is that these posts
do no comprise "any other office" within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said officials.23 To characterize these
posts otherwise would lead to absurd consequences, among which are: The President of the
Philippines cannot chair the National Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries
of National Defense, Justice, Labor and Employment and Local Government sit in this Council,
which would then have no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National
Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration
(POEA), both of which are attached to his department for policy coordination and guidance. Neither
can his Undersecretaries and Assistant Secretaries chair these agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary Board.24 Neither can their
respective undersecretaries and assistant secretaries. The Central Bank Governor would then be
assisted by lower ranking employees in providing policy direction in the areas of money, banking and
credit.25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter of government, is not to be interpreted as
demanding the impossible or the impracticable; and unreasonable or absurd consequences, if
possible, should be avoided.26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions
held without additional compensation in ex-officio capacities as provided by law and as required by
the primary functions of the concerned official's office. The term ex-officio means "from office; by
virtue of office." It refers to an "authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the official position." Ex-
officio likewise denotes an "act done in an official character, or as a consequence of office, and
without any other appointment or authority than that conferred by the office."27 An ex-officio member
of a board is one who is a member by virtue of his title to a certain office, and without further warrant
or appointment.28 To illustrate, by express provision of law, the Secretary of Transportation and
Communications is the ex-officioChairman of the Board of the Philippine Ports Authority,29 and the
Light Rail Transit Authority.30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery
and Apparel Control and Inspection Board,31 thus: "An examination of section 2 of the questioned
statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only
be designated by the respective department heads. With the exception of the representative from
the private sector, they sit ex-officio. In order to be designated they must already be holding
positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous
appointment in the Bureau of Customs, cannot, under the act, be designated a representative from
that office. The same is true with respect to the representatives from the other offices. No new
appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed under their
original appointments."32

The term "primary" used to describe "functions" refers to the order of importance and thus means
chief or principal function. The term is not restricted to the singular but may refer to the plural.33 The
additional duties must not only be closely related to, but must be required by the official's primary
functions. Examples of designations to positions by virtue of one's primary functions are the
Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of
Transportation and Communications acting as Chairman of the Maritime Industry Authority34 and the
Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions
would fall under the purview of "any other office" prohibited by the Constitution. An example would
be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and
Gaming Corporation. The same rule applies to such positions which confer on the cabinet official
management functions and/or monetary compensation, such as but not limited to chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their
deputies or assistants which are not inconsistent with those already prescribed by their offices or
appointments by virtue of their special knowledge, expertise and skill in their respective executive
offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination among the different offices in the Executive
Branch in the discharge of its multifarious tasks of executing and implementing laws affecting
national interest and general welfare and delivering basic services to the people. It is consistent with
the power vested on the President and his alter egos, the Cabinet members, to have control of all
the executive departments, bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions being assigned to the President and his
official family to sit in the governing bodies or boards of governmental agencies or instrumentalities
in an ex-officio capacity as provided by law and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and resulting in an unwieldy and confused
bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or
functions must be required by the primary functions of the official concerned, who is to perform the
same in an ex-officio capacity as provided by law, without receiving any additional compensation
therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows
that the official concerned has no right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and covered by the compensation
attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a
meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal
contemplation performing the primary function of his principal office in defining policy in monetary
and banking matters, which come under the jurisdiction of his department. For such attendance,
therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them
or an honorarium or an allowance, or some other such euphemism. By whatever name it is
designated, such additional compensation is prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian
Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General
Provisions, the exception "unless required by the functions of his position,"36 express reference to
certain high-ranking appointive public officials like members of the Cabinet were made.37 Responding
to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances
when although not required by current law, membership of certain high-ranking executive officials
in other offices and corporations is necessary by reason of said officials' primary functions. The
example given by Commissioner Monsod was the Minister of Trade and Industry.38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying
that additional functions and duties flowing from the primary functions of the official may be imposed
upon him without offending the constitutional prohibition under consideration, it cannot, however, be
taken as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This
colloquy between the two Commissioners took place in the plenary session of September 27, 1986.
Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed
article on General Provisions.39 At that time, the article on the Civil Service Commission had been
approved on third reading on July 22, 1986,40 while the article on the Executive Department,
containing the more specific prohibition in Section 13, had also been earlier approved on third
reading on August 26, 1986.41 It was only after the draft Constitution had undergone reformatting and
"styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7,
par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of
his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional
guidelines in the absence of specific constitutional provisions on the matter. What was primarily at
issue and approved on that occasion was the adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule covering all appointive public officials. Had
the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article
VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in then
Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on
the Civil Service Commission.

That this exception would in the final analysis apply also to the President and his official family is by
reason of the legal principles governing additional functions and duties of public officials rather than
by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by the primary functions may be
considered as not constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto
may be had only when other guides fail42 as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention "are of value as
1w phi 1

showing the views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face."43 The proper interpretation
therefore depends more on how it was understood by the people adopting it than in the framers's
understanding thereof.44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to
prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from
holding during their tenure multiple offices or employment in the government, except in those cases
specified in the Constitution itself and as above clarified with respect to posts held without additional
compensation in an ex-officio capacity as provided by law and as required by the primary functions
of their office, the citation of Cabinet members (then called Ministers) as examples during the debate
and deliberation on the general rule laid down for all appointive officials should be considered as
mere personal opinions which cannot override the constitution's manifest intent and the people'
understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article
IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional.
Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not more than two (2) positions in the
government and government corporations, Executive Order No. 284 actually allows them to hold
multiple offices or employment in direct contravention of the express mandate of Section 13, Article
VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987
Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the
Government, considering that Cabinet members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in
this decision, ex-officio posts held by the executive official concerned without additional
compensation as provided by law and as required by the primary functions of his office do not fall
under the definition of "any other office" within the contemplation of the constitutional prohibition.
With respect to other offices or employment held by virtue of legislation, including chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say
that the feared impractical consequences are more apparent than real. Being head of an executive
department is no mean job. It is more than a full-time job, requiring full attention, specialized
knowledge, skills and expertise. If maximum benefits are to be derived from a department head's
ability and expertise, he should be allowed to attend to his duties and responsibilities without the
distraction of other governmental offices or employment. He should be precluded from dissipating
his efforts, attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents
Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health
Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their
other offices or employment, as herein defined, in the government, including government-owned or
controlled corporations and their subsidiaries. With respect to the other named respondents, the
petitions have become moot and academic as they are no longer occupying the positions
complained of.

During their tenure in the questioned positions, respondents may be considered de facto officers and
as such entitled to emoluments for actual services rendered.46 It has been held that "in cases where
there is no de jure,officer, a de facto officer, who, in good faith has had possession of the office and
has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and
may in an appropriate action recover the salary, fees and other compensations attached to the
office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed from all liability to pay
any one for such services.47 Any per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned positions may therefore be
retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive
Order No. 284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.
 [G.R. No. 122156. February 3, 1997]

MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE

INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.

DECISION
BELLOSILLO, J.:

The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the
grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos, is [1]

invoked by petitioner in its bid to acquire 51% of the shares of the Manila
Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask whether the
51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance
System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided to
sell through public bidding 30% to 51% of the issued and outstanding shares
of respondent MHC. The winning bidder, or the eventual strategic partner,
is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel. In a close bidding held on
[2]

18 September 1995 only two (2) bidders participated: petitioner Manila Prince
Hotel Corporation, a Filipino corporation, which offered to buy 51% of the
MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid of
petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS
state -

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -

1. The Highest Bidder must comply with the conditions set forth below by October
23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System Contract or other
type of contract specified by the Highest Bidder in its strategic plan for the Manila
Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with
GSIS x x x x

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later than October 23,
1995 (reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/

OGCC (Office of the Government Corporate Counsel) are obtained. [3]

Pending the declaration of Renong Berhard as the winning bidder/strategic

partner and the execution of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995 matched the bid price of P44.00
per share tendered by Renong Berhad. In a subsequent letter dated 10
[4]

October 1995 petitioner sent a managers check issued by Philtrust Bank for
Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid
of the Malaysian Group, Messrs. Renong Berhad x x x x which respondent
[5]

GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the
MHC may be hastened by respondent GSIS and consummated with Renong
Berhad, petitioner came to this Court on prohibition and mandamus. On 18
October 1995 the Court issued a temporary restraining order enjoining
respondents from perfecting and consummating the sale to the Malaysian
firm.
On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then set for
oral arguments with former Chief Justice Enrique M. Fernando and Fr.
Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of
an earlier generation of Filipinos who believed in the nobility and sacredness
of independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the
national patrimony. Petitioner also argues that since 51% of the shares of the
[6]

MHC carries with it the ownership of the business of the hotel which is owned
by respondent GSIS, a government-owned and controlled corporation, the
hotel business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction
involving 51% of the shares of stock of the MHC is clearly covered by the term
national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution,
applies.[7]
 It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the national
economy petitioner should be preferred after it has matched the bid offer of
the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price
per share.[8]

Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and policy since
it is not a self-executing provision and requires implementing legislation(s) x x
x x Thus, for the said provision to operate, there must be existing laws to lay
down conditions under which business may be done. [9]

Second, granting that this provision is self-executing, Manila Hotel does

not fall under the term national patrimony which only refers to lands of the
public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna
and all marine wealth in its territorial sea, and exclusive marine zone as cited
in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the guests
who have slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall under
the patrimony of the nation. What is more, the mandate of the Constitution is
addressed to the State, not to respondent GSIS which possesses a
personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony,
the constitutional provision invoked is still inapplicable since what is being sold
is only 51% of the outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51% of the equity of
the MHC cannot be considered part of the national patrimony.Moreover, if the
disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it
had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders
are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a matching
bid has not yet arisen since it only takes place if for any reason, the Highest
Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very
well be awarded the block of shares and the condition giving rise to the
exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a
capricious, whimsical manner, and if ever it did abuse its discretion it was not
so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for mandamus
should fail as petitioner has no clear legal right to what it demands and
respondents do not have an imperative duty to perform the act required of
them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. It prescribes
[10]

the permanent framework of a system of government, assigns to the different

departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in
other words is that it is a supreme law to which all other laws must conform
and in accordance with which all private rights must be determined and all
public authority administered. Under the doctrine of constitutional
[11]

supremacy, if a law or contract violates any norm of the constitution that law
or contract whether promulgated by the legislative or by the executive branch
or entered into by private persons for private purposes is null and void and
without any force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every
statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry
out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of
citizens. A provision which lays down a general principle, such as those
[12]

found in Art. II of the 1987 Constitution, is usually not self-executing. But a

provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by
means of which the right it grants may be enjoyed or protected, is self-
executing.Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject
is referred to the legislature for action.[13]

As against constitutions of the past, modern constitutions have been

generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a
manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative
body.Hence, unless it is expressly provided that a legislative act is necessary
to enforce a constitutional mandate, the presumption now is that all provisions
of the constitution are self-executing.If the constitutional provisions are treated
as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental
law. This can be cataclysmic. That is why the prevailing view is, as it has
[14]

always been, that -

x x x x in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing x x x x Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing, as a contrary rule would give
the legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute.
[15]

Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions on
the floor of the 1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of PREFERENCE is given to QUALIFIED
FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the
word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against
whom? As against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
QUALIFIED because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et
cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way
as not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting further laws
to enforce the constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice to
be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable
safeguards around the exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self-
executing constitutional provision does not render such a provision ineffective
in the absence of such legislation. The omission from a constitution of any
express provision for a remedy for enforcing a right or liability is not
necessarily an indication that it was not intended to be self-executing. The rule
is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in
harmony with the constitution, further the exercise of constitutional right and
make it more available. Subsequent legislation however does not
[17]

necessarily mean that the subject constitutional provision is not, by itself, fully
enforceable.
 Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not self-
executing. The argument is flawed. If the first and third paragraphs are not
[18]

self-executing because Congress is still to enact measures to encourage the

formation and operation of enterprises fully owned by Filipinos, as in the first
paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the third
paragraph, then a fortiori, by the same logic, the second paragraph can only
be self-executing as it does not by its language require any legislation in order
to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in
another.[19]

Even the cases cited by respondents holding that certain constitutional

provisions are merely statements of principles and policies, which are
basically not self-executing and only placed in the Constitution as moral
incentives to legislation, not as judicially enforceable rights - are simply not in
point. Basco v. Philippine Amusements and Gaming Corporation speaks of [20]

constitutional provisions on personal dignity, the sanctity of family life, the

[21] [22]

vital role of the youth in nation-building, the promotion of social justice, and
[23] [24]

the values of education. Tolentino v. Secretary of Finance refers to

[25] [26]

constitutional provisions on social justice and human rights and on [27]

education. Lastly, Kilosbayan, Inc. v. Morato cites provisions on the

[28] [29]

promotion of general welfare, the sanctity of family life, the vital role of the
[30] [31]

youth in nation-building and the promotion of total human liberation and

[32]

development. A reading of these provisions indeed clearly shows that they

[33]

are not judicially enforceable constitutional rights but merely guidelines for
legislation. The very terms of the provisions manifest that they are only
principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution
is a mandatory, positive command which is complete in itself and which needs
no further guidelines or implementing laws or rules for its enforcement. From
its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable. When our Constitution mandates
that [i]n the grant of rights, privileges, and concessions covering national
economy and patrimony, the State shall give preference to qualified
Filipinos, it means just that - qualified Filipinos shall be preferred. And when
our Constitution declares that a right exists in certain specified circumstances
an action may be maintained to enforce such right notwithstanding the
absence of any legislation on the subject; consequently, if there is no statute
especially enacted to enforce such constitutional right, such right enforces
itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission explains - [34]
 The patrimony of the Nation that should be conserved and developed refers
not only to our rich natural resources but also to the cultural heritage of our
race. It also refers to our intelligence in arts, sciences and letters. Therefore,
we should develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains
to heritage. When the Constitution speaks of national patrimony, it refers not
[35]

only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in
1912, it immediately evolved to be truly Filipino. Formerly a concourse for the
elite, it has since then become the venue of various significant events which
have shaped Philippine history. It was called the Cultural Center of the
1930s. It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine
Government it plays host to dignitaries and official visitors who are accorded
the traditional Philippine hospitality. [36]

The history of the hotel has been chronicled in the book The Manila Hotel:
The Heart and Memory of a City. During World War II the hotel was
[37]

converted by the Japanese Military Administration into a military

headquarters. When the American forces returned to recapture Manila the
hotel was selected by the Japanese together with Intramuros as the two (2)
places for their final stand. Thereafter, in the 1950s and 1960s, the hotel
became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped
numerous international recognitions, an acknowledgment of the Filipino talent
and ingenuity. In 1986 the hotel was the site of a failed coup d etat where an
aspirant for vice-president was proclaimed President of the Philippine
Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to
the triumphs and failures, loves and frustrations of the Filipinos; its existence
is impressed with public interest; its own historicity associated with our
struggle for sovereignty, independence and nationhood. Verily, Manila Hotel
has become part of our national economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or
owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the
land on which the hotel edifice stands. Consequently, we cannot sustain
respondents claim that the Filipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding shares of
the corporation, not the Hotel building nor the land upon which the building
stands.[38]

The argument is pure sophistry. The term qualified Filipinos as used in our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And
the amendment would consist in substituting the words QUALIFIED FILIPINOS
with the following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have
to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we
not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What
about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the
preference should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may
refer only to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS. And the word Filipinos here, as intended by the proponents, will
include not only individual Filipinos but also Filipino-controlled entities or entities
fully-controlled by Filipinos.[40]

The phrase preference to qualified Filipinos was explained thus -

MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please
restate his amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a
Filipino enterprise is also qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise,
will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]

Expounding further on the Filipino First Policy provision Commissioner

Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies
 the so-called Filipino First policy.That means that Filipinos should be given
preference in the grant of concessions, privileges and rights covering the national
patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
Nolledo - [43]

Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic

concerns. It is better known as the FILIPINO FIRST Policy x x x x This provision
was never found in previous Constitutions x x x x

The term qualified Filipinos simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of credible
competence and efficiency. It certainly does NOT mandate the pampering and
preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counterproductive and
inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to
be made between a qualified foreigner and a qualified Filipino, the latter shall be
chosen over the former.

Lastly, the word qualified is also determinable. Petitioner was so

considered by respondent GSIS and selected as one of the qualified
bidders. It was pre-qualified by respondent GSIS in accordance with its own
guidelines so that the sole inference here is that petitioner has been found to
be possessed of proven management expertise in the hotel industry, or it has
significant equity ownership in another hotel company, or it has an overall
management and marketing proficiency to successfully operate the Manila
Hotel.[44]

The penchant to try to whittle away the mandate of the Constitution by

arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing.The attempt to violate a clear
constitutional provision - by the government itself - is only too distressing. To
adopt such a line of reasoning is to renounce the duty to ensure faithfulness to
the Constitution. For, even some of the provisions of the Constitution which
evidently need implementing legislation have juridical life of their own and can
be the source of a judicial remedy.We cannot simply afford the government a
defense that arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on
constitutional government is apt -

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts - provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress, or
perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates. [45]
 Respondents further argue that the constitutional provision is addressed to
the State, not to respondent GSIS which by itself possesses a separate and
distinct personality. This argument again is at best specious. It is undisputed
that the sale of 51% of the MHC could only be carried out with the prior
approval of the State acting through respondent Committee on
Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact
alone makes the sale of the assets of respondents GSIS and MHC a state
action. In constitutional jurisprudence, the acts of persons distinct from the
government are considered state action covered by the Constitution (1) when
the activity it engages in is a public function; (2) when the government is so
significantly involved with the private actor as to make the government
responsible for his action; and, (3) when the government has approved or
authorized the action. It is evident that the act of respondent GSIS in selling
51% of its share in respondent MHC comes under the second and third
categories of state action. Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and
therefore subject to the constitutional command. [46]

When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all, government is
composed of three (3) divisions of power - legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three (3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed
among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it
is not yet the winning bidder. The bidding rules expressly provide that the
highest bidder shall only be declared the winning bidder after it has negotiated
and executed the necessary contracts, and secured the requisite
approvals. Since the Filipino First Policy provision of the Constitution bestows
preference on qualified Filipinos the mere tending of the highest bid is not an
assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award yet, nor are
they under obligation to enter into one with the highest bidder. For in choosing
the awardee respondents are mandated to abide by the dictates of the 1987
Constitution the provisions of which are presumed to be known to all the
bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding rules
issued by respondent GSIS, lest the bidding rules be nullified for being
violative of the Constitution. It is a basic principle in constitutional law that all
laws and contracts must conform with the fundamental law of the land.Those
which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share. Certainly, the constitutional mandate itself is reason enough not to
[47]

award the block of shares immediately to the foreign bidder notwithstanding

its submission of a higher, or even the highest, bid. In fact, we cannot
conceive of a strongerreason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering
the national economy and patrimony, thereby exceeding the bid of a Filipino,
there is no question that the Filipino will have to be allowed to match the bid of
the foreign entity. And if the Filipino matches the bid of a foreign firm the
award should go to the Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the 1987 Constitution. For,
while this may neither be expressly stated nor contemplated in the bidding
rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore
it would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the Philippines
are understood to be always open to public scrutiny. These are given factors
which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or
with any of its agencies or instrumentalities is presumed to know his rights
and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware from
the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or
if the qualified Filipino fails to match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was already preferred at the
inception of the bidding because of the constitutional mandate, petitioner had
not yet matched the bid offered by Renong Berhad. Thus it did not have the
right or personality then to compel respondent GSIS to accept its earlier
bid. Rightly, only after it had matched the bid of the foreign firm and the
apparent disregard by respondent GSIS of petitioners matching bid did the
latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard
unless perhaps the award has been finally made. To insist on selling the
Manila Hotel to foreigners when there is a Filipino group willing to match the
bid of the foreign group is to insist that government be treated as any other
ordinary market player, and bound by its mistakes or gross errors of judgment,
regardless of the consequences to the Filipino people. The miscomprehension
of the Constitution is regrettable. Thus we would rather remedy the
indiscretion while there is still an opportunity to do so than let the government
develop the habit of forgetting that the Constitution lays down the basic
conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules after
the latter has matched the bid of the Malaysian firm clearly constitutes grave
abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a guideline for
future legislation but primarily to be enforced; so must it be enforced. This
Court as the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is not
the intention of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for
Filipinos whenever such preference is ordained by the Constitution. The
position of the Court on this matter could have not been more appropriately
articulated by Chief Justice Narvasa -

As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism for
decisions perceived as obstacles to economic progress and development x x x x in
connection with a temporary injunction issued by the Courts First Division against the
sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were
published in a major daily to the effect that that injunction again demonstrates that the
Philippine legal system can be a major obstacle to doing business here.

Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism. [48]

Privatization of a business asset for purposes of enhancing its business

viability and preventing further losses, regardless of the character of the asset,
should not take precedence over non-material values. A commercial, nay
even a budgetary, objective should not be pursued at the expense of national
pride and dignity. For the Constitution enshrines higher and nobler non-
material values. Indeed, the Court will always defer to the Constitution in the
proper governance of a free society; after all, there is nothing so sacrosanct in
any economic policy as to draw itself beyond judicial review when the
Constitution is involved. [49]

Nationalism is inherent in the very concept of the Philippines being a

democratic and republican state, with sovereignty residing in the Filipino
people and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can
have no higher purpose. Any interpretation of any constitutional provision
must adhere to such basic concept. Protection of foreign investments, while
laudible, is merely a policy. It cannot override the demands of nationalism. [50]
 The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted many
of the most important events in the short history of the Philippines as a
nation. We are talking about a hotel where heads of states would prefer to be
housed as a strong manifestation of their desire to cloak the dignity of the
highest state function to their official visits to the Philippines. Thus the Manila
Hotel has played and continues to play a significant role as an authentic
repository of twentieth century Philippine history and culture. In this sense, it
has become truly a reflection of the Filipino soul - a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a
country.[51]

This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark - this Grand Old Dame of hotels in
Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of
the Filipino psyche to alien hands cannot be less than mephistophelian for it
is, in whatever manner viewed, a veritable alienation of a nations soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot
be equally drawn from a qualified Filipino, can be gained by the Filipinos if
Manila Hotel - and all that it stands for - is sold to a non-Filipino? How much of
national pride will vanish if the nations cultural heritage is entrusted to a
foreign entity? On the other hand, how much dignity will be preserved and
realized if the national patrimony is safekept in the hands of
a qualified, zealous and well-meaning Filipino? This is the plain and simple
meaning of the Filipino First Policyprovision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty
of being the elderly watchman of the nation, will continue to respect and
protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the
shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the
necessary agreements and documents to effect the sale, to issue the
necessary clearances and to do such other acts and deeds as may be
necessary for the purpose.
SO ORDERED.
G.R. No. 113375 May 5, 1994

KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA,

EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO,
JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN.
WIGBERTO TAADA, and REP. JOKER P. ARROYO, petitioners,
vs.
TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary, Office of the President;
RENATO CORONA, in his capacity as Assistant Executive Secretary and Chairman of the
Presidential review Committee on the Lotto, Office of the President; PHILIPPINE CHARITY
SWEEPSTAKES OFFICE; and PHILIPPINE GAMING MANAGEMENT CORPORATION,
respondents.

Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong, Jr. and Felipe L. Gozon for petitioners.

Renato L. Cayetano and Eleazar B. Reyes for PGMC.

Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero for intervenors.

DAVIDE, JR., J.:

This is a special civil action for prohibition and injunction, with a prayer for a temporary restraining
order and preliminary injunction, which seeks to prohibit and restrain the implementation of the
"Contract of Lease" executed by the Philippine Charity Sweepstakes Office (PCSO) and the
Philippine Gaming Management Corporation (PGMC) in connection with the on- line lottery system,
also known as "lotto."

Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non-stock domestic corporation

composed of civic-spirited citizens, pastors, priests, nuns, and lay leaders who are committed to the
cause of truth, justice, and national renewal. The rest of the petitioners, except Senators Freddie
Webb and Wigberto Taada and Representative Joker P. Arroyo, are suing in their capacities as
members of the Board of Trustees of KILOSBAYAN and as taxpayers and concerned citizens.
Senators Webb and Taada and Representative Arroyo are suing in their capacities as members of
Congress and as taxpayers and concerned citizens of the Philippines.

The pleadings of the parties disclose the factual antecedents which triggered off the filing of this
petition.

Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as amended by B.P. Blg. 42)
which grants it the authority to hold and conduct "charity sweepstakes races, lotteries and other
similar activities," the PCSO decided to establish an on- line lottery system for the purpose of
increasing its revenue base and diversifying its sources of funds. Sometime before March 1993,
after learning that the PCSO was interested in operating an on-line lottery system, the Berjaya
Group Berhad, "a multinational company and one of the ten largest public companies in Malaysia,"
long "engaged in, among others, successful lottery operations in Asia, running both Lotto and Digit
games, thru its subsidiary, Sports Toto Malaysia," with its "affiliate, the International Totalizator
Systems, Inc., . . . an American public company engaged in the international sale or provision of
computer systems, softwares, terminals, training and other technical services to the gaming
industry," "became interested to offer its services and resources to PCSO." As an initial step,
Berjaya Group Berhad (through its individual nominees) organized with some Filipino investors in
March 1993 a Philippine corporation known as the Philippine Gaming Management Corporation
(PGMC), which "was intended to be the medium through which the technical and management
services required for the project would be offered and delivered to PCSO." 1

Before August 1993, the PCSO formally issued a Request for Proposal (RFP) for the Lease Contract
of an on-line lottery system for the PCSO. 2 Relevant provisions of the RFP are the following:

1. EXECUTIVE SUMMARY

xxx xxx xxx

1.2. PCSO is seeking a suitable contractor which shall build, at its own expense, all
the facilities ('Facilities') needed to operate and maintain a nationwide on-line lottery
system. PCSO shall lease the Facilities for a fixed percentage ofquarterly gross
receipts. All receipts from ticket sales shall be turned over directly to PCSO. All
capital, operating expenses and expansion expenses and risks shall be for the
exclusive account of the Lessor.

xxx xxx xxx

1.4. The lease shall be for a period not exceeding fifteen (15) years.

1.5. The Lessor is expected to submit a comprehensive nationwide lottery

development plan ("Development Plan") which will include the game, the marketing
of the games, and the logistics to introduce the games to all the cities and
municipalities of the country within five (5) years.

xxx xxx xxx

1.7. The Lessor shall be selected based on its technical expertise, hardware and
software capability, maintenance support, and financial resources. The Development
Plan shall have a substantial bearing on the choice of the Lessor. The Lessor shall
be a domestic corporation, with at least sixty percent (60%) of its shares owned by
Filipino shareholders.

xxx xxx xxx

The Office of the President, the National Disaster Control Coordinating Council, the
Philippine National Police, and the National Bureau of Investigation shall be
authorized to use the nationwide telecommunications system of the Facilities Free of
Charge.

1.8. Upon expiration of the lease, the Facilities shall be owned by PCSO without any
additional consideration. 3

xxx xxx xxx

2.2. OBJECTIVES

The objectives of PCSO in leasing the Facilities from a private entity are as follows:

xxx xxx xxx

2.2.2. Enable PCSO to operate a nationwide on-line Lottery system at no expense or

risk to the government.

xxx xxx xxx

2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR

xxx xxx xxx

2.4.2. THE LESSOR

The Proponent is expected to furnish and maintain the Facilities, including the
personnel needed to operate the computers, the communications network and sales
offices under a build-lease basis. The printing of tickets shall be undertaken under
the supervision and control of PCSO. The Facilities shall enable PCSO to
computerize the entire gaming system.

The Proponent is expected to formulate and design consumer-oriented Master

Games Plan suited to the marketplace, especially geared to Filipino gaming habits
and preferences. In addition, the Master Games Plan is expected to include a
 Product Plan for each game and explain how each will be introduced into the market.
This will be an integral part of the Development Plan which PCSO will require from
the Proponent.

xxx xxx xxx

The Proponent is expected to provide upgrades to modernize the entire gaming

system over the life ofthe lease contract.

The Proponent is expected to provide technology transfer to PCSO technical

personnel. 4

7. GENERAL GUIDELINES FOR PROPONENTS

xxx xxx xxx

Finally, the Proponent must be able to stand the acid test of proving that it is an entity
able to take on the role of responsible maintainer of the on-line lottery system, and
able to achieve PSCO's goal of formalizing an on-line lottery system to achieve its
mandated objective. 5

xxx xxx xxx

16. DEFINITION OF TERMS

Facilities: All capital equipment, computers, terminals, software, nationwide

telecommunication network, ticket sales offices, furnishings, and fixtures; printing
costs; cost of salaries and wages; advertising and promotion expenses; maintenance
costs; expansion and replacement costs; security and insurance, and all other
related expenses needed to operate nationwide on-line lottery system.6

Considering the above citizenship requirement, the PGMC claims that the Berjaya Group "undertook
to reduce its equity stakes in PGMC to 40%," by selling 35% out of the original 75% foreign
stockholdings to local investors.

On 15 August 1993, PGMC submitted its bid to the PCSO.7

The bids were evaluated by the Special Pre-Qualification Bids and Awards Committee (SPBAC) for
the on-line lottery and its Bid Report was thereafter submitted to the Office of the President. 8 The
submission was preceded by complaints by the Committee's Chairperson, Dr. Mita Pardo de
Tavera. 9

On 21 October 1993, the Office of the President announced that it had given the respondent PGMC
the go-signal to operate the country's on-line lottery system and that the corresponding implementing
contract would be submitted not later than 8 November 1993 "for final clearance and approval by the
Chief Executive." 10 This announcement was published in the Manila Standard, Philippine Daily
Inquirer, and the Manila Times on 29 October 1993. 11

On 4 November 1993, KILOSBAYAN sent an open letter to Presidential Fidel V. Ramos strongly
opposing the setting up to the on-line lottery system on the basis of serious moral and ethical
considerations. 12

At the meeting of the Committee on Games and Amusements of the Senate on 12 November 1993,
KILOSBAYAN reiterated its vigorous opposition to the on-line lottery on account of its immorality and
illegality. 13

On 19 November 1993, the media reported that despite the opposition, "Malacaang will push
through with the operation of an on-line lottery system nationwide" and that it is actually the
respondent PCSO which will operate the lottery while the winning corporate bidders are merely
"lessors." 14
On 1 December 1993, KILOSBAYAN requested copies of all documents pertaining to the lottery
award from Executive Secretary Teofisto Guingona, Jr. In his answer of 17 December 1993, the
Executive Secretary informed KILOSBAYAN that the requested documents would be duly
transmitted before the end of the month. 15. However, on that same date, an agreement denominated
as "Contract of Lease" was finally executed by respondent PCSO and respondent PGMC. 16 The
President, per the press statement issued by the Office of the President, approved it on 20
December 1993.17

In view of their materiality and relevance, we quote the following salient provisions of the Contract of
Lease:

1. DEFINITIONS

The following words and terms shall have the following respective meanings:

1.1 Rental Fee Amount to be paid by PCSO to the LESSOR as compensation for
the fulfillment of the obligations of the LESSOR under this Contract, including, but not
limited to the lease of the Facilities.

xxx xxx xxx

1.3 Facilities All capital equipment, computers, terminals, software (including

source codes for the On-Line Lottery application software for the terminals,
telecommunications and central systems), technology, intellectual property rights,
telecommunications network, and furnishings and fixtures.

1.4 Maintenance and Other Costs All costs and expenses relating to printing,
manpower, salaries and wages, advertising and promotion, maintenance, expansion
and replacement, security and insurance, and all other related expenses needed to
operate an On-Line Lottery System, which shall be for the account of the LESSOR.
All expenses relating to the setting-up, operation and maintenance of ticket sales
offices of dealers and retailers shall be borne by PCSO's dealers and retailers.

1.5 Development Plan The detailed plan of all games, the marketing thereof,
number of players, value of winnings and the logistics required to introduce the
games, including the Master Games Plan as approved by PCSO, attached hereto as
Annex "A", modified as necessary by the provisions of this Contract.

xxx xxx xxx

1.8 Escrow Deposit The proposal deposit in the sum of Three Hundred Million
Pesos (P300,000,000.00) submitted by the LESSOR to PCSO pursuant to the
requirements of the Request for Proposals.

2. SUBJECT MATTER OF THE LEASE

The LESSOR shall build, furnish and maintain at its own expense and risk the
Facilities for the On-Line Lottery System of PCSO in the Territory on an exclusive
basis. The LESSOR shall bear all Maintenance and Other Costs as defined herein.

xxx xxx xxx

3. RENTAL FEE

For and in consideration of the performance by the LESSOR of its obligations herein,
PCSO shall pay LESSOR a fixed Rental Fee equal to four point nine percent (4.9%)
of gross receipts from ticket sales, payable net of taxes required by law to be
withheld, on a semi-monthly basis. Goodwill, franchise and similar fees shall belong
to PCSO.

4. LEASE PERIOD
The period of the lease shall commence ninety (90) days from the date of effectivity
of this Contract and shall run for a period of eight (8) years thereafter, unless sooner
terminated in accordance with this Contract.

5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF THE ON-LINE

LOTTERY SYSTEM

PCSO shall be the sole and individual operator of the On-Line Lottery System.
Consequently:

5.1 PCSO shall have sole responsibility to decide whether to implement, fully or
partially, the Master Games Plan of the LESSOR. PCSO shall have the sole
responsibility to determine the time for introducing new games to the market. The
Master Games Plan included in Annex "A" hereof is hereby approved by PCSO.

5.2 PCSO shall have control over revenues and receipts of whatever nature from the
On-Line Lottery System. After paying the Rental Fee to the LESSOR, PCSO shall
have exclusive responsibility to determine the Revenue Allocation Plan; Provided,
that the same shall be consistent with the requirement of R.A. No. 1169, as
amended, which fixes a prize fund of fifty five percent (55%) on the average.

5.3 PCSO shall have exclusive control over the printing of tickets, including but not
limited to the design, text, and contents thereof.

5.4 PCSO shall have sole responsibility over the appointment of dealers or retailers
throughout the country. PCSO shall appoint the dealers and retailers in a timely
manner with due regard to the implementation timetable of the On-Line Lottery
System. Nothing herein shall preclude the LESSOR from recommending dealers or
retailers for appointment by PCSO, which shall act on said recommendation within
forty-eight (48) hours.

5.5 PCSO shall designate the necessary personnel to monitor and audit the daily
performance of the On-Line Lottery System. For this purpose, PCSO designees shall
be given, free of charge, suitable and adequate space, furniture and fixtures, in all
offices of the LESSOR, including but not limited to its headquarters, alternate site,
regional and area offices.

5.6 PCSO shall have the responsibility to resolve, and exclusive jurisdiction over, all
matters involving the operation of the On-Line Lottery System not otherwise provided
in this Contract.

5.7 PCSO shall promulgate procedural and coordinating rules governing all activities
relating to the On-Line Lottery System.

5.8 PCSO will be responsible for the payment of prize monies, commissions to
agents and dealers, and taxes and levies (if any) chargeable to the operator of the
On-Line Lottery System. The LESSOR will bear all other Maintenance and Other
Costs, except as provided in Section 1.4.

5.9 PCSO shall assist the LESSOR in the following:

5.9.1 Work permits for the LESSOR's staff;

5.9.2 Approvals for importation of the Facilities;

5.9.3 Approvals and consents for the On-Line Lottery System; and

5.9.4 Business and premises licenses for all offices of the LESSOR
and licenses for the telecommunications network.

5.10 In the event that PCSO shall pre-terminate this Contract or suspend the
operation of the On-Line Lottery System, in breach of this Contract and through no
fault of the LESSOR, PCSO shall promptly, and in any event not later than sixty (60)
days, reimburse the LESSOR the amount of its total investment cost associated with
the On-Line Lottery System, including but not limited to the cost of the Facilities, and
further compensate the LESSOR for loss of expected net profit after tax, computed
over the unexpired term of the lease.

6. DUTIES AND RESPONSIBILITIES OF THE LESSOR

The LESSOR is one of not more than three (3) lessors of similar facilities for the
nationwide On-Line Lottery System of PCSO. It is understood that the rights of the
LESSOR are primarily those of a lessor of the Facilities, and consequently, all rights
involving the business aspects of the use of the Facilities are within the jurisdiction of
PCSO. During the term of the lease, the LESSOR shall.

6.1 Maintain and preserve its corporate existence, rights and privileges, and conduct
its business in an orderly, efficient, and customary manner.

6.2 Maintain insurance coverage with insurers acceptable to PCSO on all Facilities.

6.3 Comply with all laws, statues, rules and regulations, orders and directives,
obligations and duties by which it is legally bound.

6.4 Duly pay and discharge all taxes, assessments and government charges now
and hereafter imposed of whatever nature that may be legally levied upon it.

6.5 Keep all the Facilities in fail safe condition and, if necessary, upgrade, replace
and improve the Facilities from time to time as new technology develops, in order to
make the On-Line Lottery System more cost-effective and/or competitive, and as
may be required by PCSO shall not impose such requirements unreasonably nor
arbitrarily.

6.6 Provide PCSO with management terminals which will allow real-time monitoring
of the On-Line Lottery System.

6.7 Upon effectivity of this Contract, commence the training of PCSO and other local
personnel and the transfer of technology and expertise, such that at the end of the
term of this Contract, PCSO will be able to effectively take-over the Facilities and
efficiently operate the On-Line Lottery System.

6.8 Undertake a positive advertising and promotions campaign for both institutional
and product lines without engaging in negative advertising against other lessors.

6.9 Bear all expenses and risks relating to the Facilities including, but not limited to,
Maintenance and Other Costs and:

xxx xxx xxx

6.10 Bear all risks if the revenues from ticket sales, on an annualized basis, are
insufficient to pay the entire prize money.

6.11 Be, and is hereby, authorized to collect and retain for its own account, a security
deposit from dealers and retailers, in an amount determined with the approval of
PCSO, in respect of equipment supplied by the LESSOR. PCSO's approval shall not
be unreasonably withheld.

xxx xxx xxx

6.12 Comply with procedural and coordinating rules issued by PCSO.

7. REPRESENTATIONS AND WARRANTIES

The LESSOR represents and warrants that:

7.1 The LESSOR is corporation duly organized and existing under the laws of the
Republic of the Philippines, at least sixty percent (60%) of the outstanding capital
stock of which is owned by Filipino shareholders. The minimum required Filipino
equity participation shall not be impaired through voluntary or involuntary transfer,
disposition, or sale of shares of stock by the present stockholders.

7.2 The LESSOR and its Affiliates have the full corporate and legal power and
authority to own and operate their properties and to carry on their business in the
place where such properties are now or may be conducted. . . .

7.3 The LESSOR has or has access to all the financing and funding requirements to
promptly and effectively carry out the terms of this Contract. . . .

7.4 The LESSOR has or has access to all the managerial and technical expertise to
promptly and effectively carry out the terms of this Contract. . . .

xxx xxx xxx

10. TELECOMMUNICATIONS NETWORK

The LESSOR shall establish a telecommunications network that will connect all
municipalities and cities in the Territory in accordance with, at the LESSOR's option,
either of the LESSOR's proposals (or a combinations of both such proposals)
attached hereto as Annex "B," and under the following PCSO schedule:

xxx xxx xxx

PCSO may, at its option, require the LESSOR to establish the telecommunications
network in accordance with the above Timetable in provinces where the LESSOR
has not yet installed terminals. Provided, that such provinces have existing nodes.
Once a municipality or city is serviced by land lines of a licensed public telephone
company, and such lines are connected to Metro Manila, then the obligation of the
LESSOR to connect such municipality or city through a telecommunications network
shall cease with respect to such municipality or city. The voice facility will cover the
four offices of the Office of the President, National Disaster Control Coordinating
Council, Philippine National Police and the National Bureau of Investigation, and
each city and municipality in the Territory except Metro Manila, and those cities and
municipalities which have easy telephone access from these four offices. Voice calls
from the four offices shall be transmitted via radio or VSAT to the remote
municipalities which will be connected to this voice facility through wired network or
by radio. The facility shall be designed to handle four private conversations at any
one time.

xxx xxx xxx

13. STOCK DISPERSAL PLAN

Within two (2) years from the effectivity of this Contract, the LESSOR shall cause
itself to be listed in the local stock exchange and offer at least twenty five percent
(25%) of its equity to the public.

14. NON-COMPETITION

The LESSOR shall not, directly or indirectly, undertake any activity or business in
competition with or adverse to the On-Line Lottery System of PCSO unless it obtains
the latter's prior written consent thereto.

15. HOLD HARMLESS CLAUSE

15.1 The LESSOR shall at all times protect and defend, at its cost and expense,
PCSO from and against any and all liabilities and claims for damages and/or suits for
or by reason of any deaths of, or any injury or injuries to any person or persons, or
damages to property of any kind whatsoever, caused by the LESSOR, its
subcontractors, its authorized agents or employees, from any cause or causes
whatsoever.

15.2 The LESSOR hereby covenants and agrees to indemnify and hold PCSO
harmless from all liabilities, charges, expenses (including reasonable counsel fees)
and costs on account of or by reason of any such death or deaths, injury or injuries,
liabilities, claims, suits or losses caused by the LESSOR's fault or negligence.

15.3 The LESSOR shall at all times protect and defend, at its own cost and expense,
its title to the facilities and PCSO's interest therein from and against any and all
claims for the duration of the Contract until transfer to PCSO of ownership of the
serviceable Facilities.

16. SECURITY

16.1 To ensure faithful compliance by the LESSOR with the terms of the Contract,
the LESSOR shall secure a Performance Bond from a reputable insurance company
or companies acceptable to PCSO.

16.2 The Performance Bond shall be in the initial amount of Three Hundred Million
Pesos (P300,000,000.00), to its U.S. dollar equivalent, and shall be renewed to cover
the duration of the Contract. However, the Performance Bond shall be reduced
proportionately to the percentage of unencumbered terminals installed; Provided,
that the Performance Bond shall in no case be less than One Hundred Fifty Million
Pesos (P150,000,000.00).

16.3 The LESSOR may at its option maintain its Escrow Deposit as the Performance
Bond. . . .

17. PENALTIES

17.1 Except as may be provided in Section 17.2, should the LESSOR fail to take
remedial measures within seven (7) days, and rectify the breach within thirty (30)
days, from written notice by PCSO of any wilfull or grossly negligent violation of the
material terms and conditions of this Contract, all unencumbered Facilities shall
automatically become the property of PCSO without consideration and without need
for further notice or demand by PCSO. The Performance Bond shall likewise be
forfeited in favor of PCSO.

17.2 Should the LESSOR fail to comply with the terms of the Timetables provided in
Section 9 and 10, it shall be subject to an initial Penalty of Twenty Thousand Pesos
(P20,000.00), per city or municipality per every month of delay; Provided, that the
Penalty shall increase, every ninety (90) days, by the amount of Twenty Thousand
Pesos (P20,000.00) per city or municipality per month, whilst shall failure to comply
persists. The penalty shall be deducted by PCSO from the rental fee.

xxx xxx xxx

20. OWNERSHIP OF THE FACILITIES

After expiration of the term of the lease as provided in Section 4, the Facilities
directly required for the On-Line Lottery System mentioned in Section 1.3 shall
automatically belong in full ownership to PCSO without any further consideration
other than the Rental Fees already paid during the effectivity of the lease.

21. TERMINATION OF THE LEASE

PCSO may terminate this Contract for any breach of the material provisions of this
Contract, including the following:

21.1 The LESSOR is insolvent or bankrupt or unable to pay its debts, stops or
suspends or threatens to stop or suspend payment of all or a material part of its
 debts, or proposes or makes a general assignment or an arrangement or
compositions with or for the benefit of its creditors; or

21.2 An order is made or an effective resolution passed for the winding up or

dissolution of the LESSOR or when it ceases or threatens to cease to carry on all or
a material part of its operations or business; or

21.3 Any material statement, representation or warranty made or furnished by the

LESSOR proved to be materially false or misleading;

said termination to take effect upon receipt of written notice of

termination by the LESSOR and failure to take remedial action within
seven (7) days and cure or remedy the same within thirty (30) days
from notice.

Any suspension, cancellation or termination of this Contract shall not

relieve the LESSOR of any liability that may have already accrued
hereunder.

xxx xxx xxx

Considering the denial by the Office of the President of its protest and the statement of Assistant
Executive Secretary Renato Corona that "only a court injunction can stop Malacaang," and the
imminent implementation of the Contract of Lease in February 1994, KILOSBAYAN, with its co-
petitioners, filed on 28 January 1994 this petition.

In support of the petition, the petitioners claim that:

. . . X X THE OFFICE OF THE PRESIDENT, ACTING THROUGH

RESPONDENTS EXECUTIVE SECRETARY AND/OR ASSISTANT
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, AND THE PCSO
GRAVELY ABUSE[D] THEIR DISCRETION AND/OR FUNCTIONS
TANTAMOUNT TO LACK OF JURISDICTION AND/OR AUTHORITY
IN RESPECTIVELY: (A) APPROVING THE AWARD OF THE
CONTRACT TO, AND (B) ENTERING INTO THE SO-CALLED
"CONTRACT OF LEASE" WITH, RESPONDENT PGMC FOR THE
INSTALLATION, ESTABLISHMENT AND OPERATION OF THE ON-
LINE LOTTERY AND TELECOMMUNICATION SYSTEMS
REQUIRED AND/OR AUTHORIZED UNDER THE SAID
CONTRACT, CONSIDERING THAT:

a) Under Section 1 of the Charter of the PCSO, the PCSO is prohibited from holding
and conducting lotteries "in collaboration, association or joint venture with any
person, association, company or entity";

b) Under Act No. 3846 and established jurisprudence, a Congressional franchise is

required before any person may be allowed to establish and operate said
telecommunications system;

c) Under Section 11, Article XII of the Constitution, a less than 60% Filipino-owned
and/or controlled corporation, like the PGMC, is disqualified from operating a public
service, like the said telecommunications system; and

d) Respondent PGMC is not authorized by its charter and under the Foreign
Investment Act (R.A. No. 7042) to install, establish and operate the on-line lotto and
telecommunications systems.18

Petitioners submit that the PCSO cannot validly enter into the assailed Contract of Lease with the
PGMC because it is an arrangement wherein the PCSO would hold and conduct the on-line lottery
system in "collaboration" or "association" with the PGMC, in violation of Section 1(B) of R.A. No.
1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting charity
sweepstakes races, lotteries, and other similar activities "in collaboration, association or joint venture
with any person, association, company or entity, foreign or domestic." Even granting arguendo that a
lease of facilities is not within the contemplation of "collaboration" or "association," an analysis,
however, of the Contract of Lease clearly shows that there is a "collaboration, association, or joint
venture between respondents PCSO and PGMC in the holding of the On-Line Lottery System," and
that there are terms and conditions of the Contract "showing that respondent PGMC is the actual
lotto operator and not respondent PCSO."19

The petitioners also point out that paragraph 10 of the Contract of Lease requires or authorizes
PGMC to establish a telecommunications network that will connect all the municipalities and cities in
the territory. However, PGMC cannot do that because it has no franchise from Congress to
construct, install, establish, or operate the network pursuant to Section 1 of Act No. 3846, as
amended. Moreover, PGMC is a 75% foreign-owned or controlled corporation and cannot, therefore,
be granted a franchise for that purpose because of Section 11, Article XII of the 1987 Constitution.
Furthermore, since "the subscribed foreign capital" of the PGMC "comes to about 75%, as shown by
paragraph EIGHT of its Articles of Incorporation," it cannot lawfully enter into the contract in question
because all forms of gambling and lottery is one of them are included in the so-called foreign
investments negative list under the Foreign Investments Act (R.A. No. 7042) where only up to 40%
foreign capital is allowed. 20

Finally, the petitioners insist that the Articles of Incorporation of PGMC do not authorize it to
establish and operate an on-line lottery and telecommunications systems.21

Accordingly, the petitioners pray that we issue a temporary restraining order and a writ of preliminary
injunction commanding the respondents or any person acting in their places or upon their
instructions to cease and desist from implementing the challenged Contract of Lease and, after
hearing the merits of the petition, that we render judgment declaring the Contract of Lease void and
without effect and making the injunction permanent. 22

We required the respondents to comment on the petition.

In its Comment filed on 1 March 1994, private respondent PGMC asserts that "(1) [it] is merely an
independent contractor for a piece of work, (i.e., the building and maintenance of a lottery system to
be used by PCSO in the operation of its lottery franchise); and (2) as such independent contractor,
PGMC is not a co-operator of the lottery franchise with PCSO, nor is PCSO sharing its franchise, 'in
collaboration, association or joint venture' with PGMC as such statutory limitation is viewed from
the context, intent, and spirit of Republic Act 1169, as amended by Batas Pambansa 42." It further
claims that as an independent contractor for a piece of work, it is neither engaged in "gambling" nor
in "public service" relative to the telecommunications network, which the petitioners even consider as
an "indispensable requirement" of an on-line lottery system. Finally, it states that the execution and
implementation of the contract does not violate the Constitution and the laws; that the issue on the
"morality" of the lottery franchise granted to the PCSO is political and not judicial or legal, which
should be ventilated in another forum; and that the "petitioners do not appear to have the legal
standing or real interest in the subject contract and in obtaining the reliefs sought." 23

In their Comment filed by the Office of the Solicitor General, public respondents Executive Secretary
Teofisto Guingona, Jr., Assistant Executive Secretary Renato Corona, and the PCSO maintain that
the contract of lease in question does not violate Section 1 of R.A. No. 1169, as amended by B.P.
Blg. 42, and that the petitioner's interpretation of the phrase "in collaboration, association or joint
venture" in Section 1 is "much too narrow, strained and utterly devoid of logic" for it "ignores the
reality that PCSO, as a corporate entity, is vested with the basic and essential prerogative to enter
into all kinds of transactions or contracts as may be necessary for the attainment of its purposes and
objectives." What the PCSO charter "seeks to prohibit is that arrangement akin to a "joint venture" or
partnership where there is "community of interest in the business, sharing of profits and losses, and
a mutual right of control," a characteristic which does not obtain in a contract of lease." With respect
to the challenged Contract of Lease, the "role of PGMC is limited to that of a lessor of the facilities"
for the on-line lottery system; in "strict technical and legal sense," said contract "can be categorized
as a contract for a piece of work as defined in Articles 1467, 1713 and 1644 of the Civil Code."

They further claim that the establishment of the telecommunications system stipulated in the
Contract of Lease does not require a congressional franchise because PGMC will not operate a
public utility; moreover, PGMC's "establishment of a telecommunications system is not intended to
establish a telecommunications business," and it has been held that where the facilities are operated
"not for business purposes but for its own use," a legislative franchise is not required before a
certificate of public convenience can be granted. 24 Even granting arguendo that PGMC is a public
utility, pursuant to Albano S.
Reyes, 25 "it can establish a telecommunications system even without a legislative franchise because
not every public utility is required to secure a legislative franchise before it could establish, maintain,
and operate the service"; and, in any case, "PGMC's establishment of the telecommunications
system stipulated in its contract of lease with PCSO falls within the exceptions under Section 1 of
Act No. 3846 where a legislative franchise is not necessary for the establishment of radio stations."

They also argue that the contract does not violate the Foreign Investment Act of 1991; that the
Articles of Incorporation of PGMC authorize it to enter into the Contract of Lease; and that the issues
of "wisdom, morality and propriety of acts of the executive department are beyond the ambit of
judicial review."

Finally, the public respondents allege that the petitioners have no standing to maintain the instant
suit, citing our resolution in Valmonte vs. Philippine Charity Sweepstakes Office. 26

Several parties filed motions to intervene as petitioners in this case, 27 but only the motion of
Senators Alberto Romulo, Arturo Tolentino, Francisco Tatad, Gloria Macapagal-Arroyo, Vicente
Sotto III, John Osmea, Ramon Revilla, and Jose Lina 28 was granted, and the respondents were
required to comment on their petition in intervention, which the public respondents and PGMC did.

In the meantime, the petitioners filed with the Securities and Exchange Commission on 29 March
1994 a petition against PGMC for the nullification of the latter's General Information Sheets. That
case, however, has no bearing in this petition.

On 11 April 1994, we heard the parties in oral arguments. Thereafter, we resolved to consider the
matter submitted for resolution and pending resolution of the major issues in this case, to issue a
temporary restraining order commanding the respondents or any person acting in their place or upon
their instructions to cease and desist from implementing the challenged Contract of Lease.

In the deliberation on this case on 26 April 1994, we resolved to consider only these issues: (a)
the locus standi of the petitioners, and (b) the legality and validity of the Contract of Lease in the light
of Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding
and conducting lotteries "in collaboration, association or joint venture with any person, association,
company or entity, whether domestic or foreign." On the first issue, seven Justices voted to sustain
the locus standi of the petitioners, while six voted not to. On the second issue, the seven Justices
were of the opinion that the Contract of Lease violates the exception to Section 1(B) of R.A. No.
1169, as amended by B.P. Blg. 42, and is, therefore, invalid and contrary to law. The six Justices
stated that they wished to express no opinion thereon in view of their stand on the first issue. The
Chief Justice took no part because one of the Directors of the PCSO is his brother-in-law.

This case was then assigned to this ponente for the writing of the opinion of the Court.

The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in their favor.
A party's standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of the issues raised. In the landmark Emergency
Powers Cases, 29 this Court brushed aside this technicality because "the transcendental importance
to the public of these cases demands that they be settled promptly and definitely, brushing aside, if
we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821)." Insofar as taxpayers'
suits are concerned, this Court had declared that it "is not devoid of discretion as to whether or not it
should be entertained," 30 or that it "enjoys an open discretion to entertain the same or not." 31 In De
La Llana vs. Alba, 32 this Court declared:

1. The argument as to the lack of standing of petitioners is easily resolved. As far as

Judge de la Llana is concerned, he certainly falls within the principle set forth in
Justice Laurel's opinion in People vs. Vera [65 Phil. 56 (1937)]. Thus: "The
unchallenged rule is that the person who impugns the validity of a statute must have
a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement [Ibid, 89]. The other petitioners as
members of the bar and officers of the court cannot be considered as devoid of "any
personal and substantial interest" on the matter. There is relevance to this excerpt
from a separate opinion in Aquino, Jr. v. Commission on Elections [L-40004, January
31, 1975, 62 SCRA 275]: "Then there is the attack on the standing of petitioners, as
vindicating at most what they consider a public right and not protecting their rights as
individuals. This is to conjure the specter of the public right dogma as an inhibition to
parties intent on keeping public officials staying on the path of constitutionalism. As
 was so well put by Jaffe; "The protection of private rights is an essential constituent
of public interest and, conversely, without a well-ordered state there could be no
enforcement of private rights. Private and public interests are, both in a substantive
and procedural sense, aspects of the totality of the legal order." Moreover, petitioners
have convincingly shown that in their capacity as taxpayers, their standing to sue has
been amply demonstrated. There would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works, foreshadowed by the very decision
of People v. Vera where the doctrine was first fully discussed, if we act differently
now. I do not think we are prepared to take that step. Respondents, however, would
hard back to the American Supreme Court doctrine in Mellon v. Frothingham, with
their claim that what petitioners possess "is an interest which is shared in common by
other people and is comparatively so minute and indeterminate as to afford any basis
and assurance that the judicial process can act on it." That is to speak in the
language of a bygone era, even in the United States. For as Chief Justice Warren
clearly pointed out in the later case of Flast v. Cohen, the barrier thus set up if not
breached has definitely been lowered.

In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,33 reiterated in Basco vs.
Philippine Amusements and Gaming Corporation,34 this Court stated:

Objections to taxpayers' suits for lack of sufficient personality standing or interest are,
however, in the main procedural matters. Considering the importance to the public of
the cases at bar, and in keeping with the Court's duty, under the 1987 Constitution,
to determine whether or not the other branches of government have kept themselves
within the limits of the Constitution and the laws and that they have not abused the
discretion given to them, this Court has brushed aside technicalities of procedure and
has taken cognizance of these petitions.

and in Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform,35 it
declared:

With particular regard to the requirement of proper party as applied in the cases
before us, we hold that the same is satisfied by the petitioners and intervenors
because each of them has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. [Ex ParteLevitt, 303 US
633]. And even if, strictly speaking, they are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions
raised.

In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed
to question the constitutionality of several executive orders issued by President
Quirino although they were invoking only an indirect and general interest shared in
common with the public. The Court dismissed the objective that they were not proper
parties and ruled that the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure. We have since then applied this exception in many other
cases. (Emphasis supplied)

In Daza vs. Singson, 36 this Court once more said:

. . . For another, we have early as in the Emergency Powers Cases that where
serious constitutional questions are involved, "the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure." The same policy has since then been
consistently followed by the Court, as in Gonzales vs. Commission on Elections [21
SCRA 774] . . .

The Federal Supreme Court of the United States of America has also expressed its discretionary
power to liberalize the rule on locus standi. In United States vs. Federal Power
Commission and Virginia Rea Association vs. Federal Power Commission,37 it held:

We hold that petitioners have standing. Differences of view, however, preclude a

single opinion of the Court as to both petitioners. It would not further clarification of
 this complicated specialty of federal jurisdiction, the solution of whose problems is in
any event more or less determined by the specific circumstances of individual
situations, to set out the divergent grounds in support of standing in these cases.

In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress,
and even association of planters, and non-profit civic organizations were allowed to initiate and
prosecute actions before this Court to question the constitutionality or validity of laws, acts,
decisions, rulings, or orders of various government agencies or instrumentalities. Among such cases
were those assailing the constitutionality of (a) R.A. No. 3836 insofar as it allows retirement gratuity
and commutation of vacation and sick leave to Senators and Representatives and to elective
officials of both Houses of Congress;38 (b) Executive Order No. 284, issued by President Corazon C.
Aquino on 25 July 1987, which allowed members of the cabinet, their undersecretaries, and
assistant secretaries to hold other government offices or positions; 39 (c) the automatic appropriation
for debt service in the General Appropriations Act; 40 (d) R.A. No. 7056 on the holding of
desynchronized elections; 41 (d) R.A. No. 1869 (the charter of the Philippine Amusement and Gaming
Corporation) on the ground that it is contrary to morals, public policy, and order; 42 and (f) R.A. No.
6975, establishing the Philippine National
Police. 43

Other cases where we have followed a liberal policy regarding locus standi include those attacking
the validity or legality of (a) an order allowing the importation of rice in the light of the prohibition
imposed by R.A. No. 3452; 44 (b) P.D. Nos. 991 and 1033 insofar as they proposed amendments to
the Constitution and P.D. No. 1031 insofar as it directed the COMELEC to supervise, control, hold,
and conduct the referendum-plebiscite on 16 October 1976; 45(c) the bidding for the sale of the 3,179
square meters of land at Roppongi, Minato-ku, Tokyo, Japan; 46 (d) the approval without hearing by
the Board of Investments of the amended application of the Bataan Petrochemical Corporation to
transfer the site of its plant from Bataan to Batangas and the validity of such transfer and the shift of
feedstock from naphtha only to naphtha and/or liquefied petroleum gas; 47 (e) the decisions, orders,
rulings, and resolutions of the Executive Secretary, Secretary of Finance, Commissioner of Internal
Revenue, Commissioner of Customs, and the Fiscal Incentives Review Board exempting the
National Power Corporation from indirect tax and duties; 48 (f) the orders of the Energy Regulatory
Board of 5 and 6 December 1990 on the ground that the hearings conducted on the second
provisional increase in oil prices did not allow the petitioner substantial cross-examination; 49 (g)
Executive Order No. 478 which levied a special duty of P0.95 per liter or P151.05 per barrel of
imported crude oil and P1.00 per liter of imported oil products; 50 (h) resolutions of the Commission
on Elections concerning the apportionment, by district, of the number of elective members
of Sanggunians; 51 and (i) memorandum orders issued by a Mayor affecting the Chief of Police of
Pasay City.52

In the 1975 case of Aquino vs. Commission on Elections, 53 this Court, despite its unequivocal ruling
that the petitioners therein had no personality to file the petition, resolved nevertheless to pass upon
the issues raised because of the far-reaching implications of the petition. We did no less in De Guia
vs. COMELEC 54 where, although we declared that De Guia "does not appear to have locus standi, a
standing in law, a personal or substantial interest," we brushed aside the procedural infirmity
"considering the importance of the issue involved, concerning as it does the political exercise of
qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and
violation of the Constitution by respondent."

We find the instant petition to be of transcendental importance to the public. The issues it raised are
of paramount public interest and of a category even higher than those involved in many of the
aforecited cases. The ramifications of such issues immeasurably affect the social, economic, and
moral well-being of the people even in the remotest barangays of the country and the counter-
productive and retrogressive effects of the envisioned on-line lottery system are as staggering as the
billions in pesos it is expected to raise. The legal standing then of the petitioners deserves
recognition and, in the exercise of its sound discretion, this Court hereby brushes aside the
procedural barrier which the respondents tried to take advantage of.

And now on the substantive issue.

Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42, prohibits the PCSO from holding and
conducting lotteries "in collaboration, association or joint venture with any person, association,
company or entity, whether domestic or foreign." Section 1 provides:
 Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity
Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs, medical
assistance and services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered One thousand four
hundred fifty-nine, as amended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries and other

similar activities, in such frequency and manner, as shall be
determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.

B. Subject to the approval of the Minister of Human Settlements, to

engage in health and welfare-related investments, programs, projects
and activities which may be profit-oriented, by itself or in
collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign, except
for the activities mentioned in the preceding paragraph (A), for the
purpose of providing for permanent and continuing sources of funds
for health programs, including the expansion of existing ones,
medical assistance and services, and/or charitable grants: Provided,
That such investment will not compete with the private sector in areas
where investments are adequate as may be determined by the
National Economic and Development Authority. (emphasis supplied)

The language of the section is indisputably clear that with respect to its franchise or privilege "to hold
and conduct charity sweepstakes races, lotteries and other similar activities," the
PCSO cannot exercise it "in collaboration, association or joint venture" with any other party. This is
the unequivocal meaning and import of the phrase "except for the activities mentioned in the
preceding paragraph (A)," namely, "charity sweepstakes races, lotteries and other similar activities."

B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered by Committee Report
No. 103 as reported out by the Committee on Socio-Economic Planning and Development of the
Interim Batasang Pambansa. The original text of paragraph B, Section 1 of Parliamentary Bill No.
622 reads as follows:

To engage in any and all investments and related profit-oriented projects or

programs and activities by itself or in collaboration, association or joint venture with
any person, association, company or entity, whether domestic or foreign, for the main
purpose of raising funds for health and medical assistance and services and
charitable grants. 55

During the period of committee amendments, the Committee on Socio-Economic Planning and
Development, through Assemblyman Ronaldo B. Zamora, introduced an amendment by substitution
to the said paragraph B such that, as amended, it should read as follows:

Subject to the approval of the Minister of Human Settlements, to engage in health-

oriented investments, programs, projects and activities which may be profit- oriented,
by itself or in collaboration, association, or joint venture with any person, association,
company or entity, whether domestic or foreign, for the purpose of providing for
permanent and continuing sources of funds for health programs, including the
expansion of existing ones, medical assistance and services and/or charitable
grants. 56

Before the motion of Assemblyman Zamora for the approval of the amendment could be acted upon,
Assemblyman Davide introduced an amendment to the amendment:

MR. DAVIDE.

Mr. Speaker.

THE SPEAKER.
 The gentleman from Cebu is recognized.

MR. DAVIDE.

May I introduce an amendment to the committee

amendment? The amendment would be to insert after
"foreign" in the amendment just read the following:
EXCEPT FOR THE ACTIVITY IN LETTER (A)
ABOVE.

When it is joint venture or in collaboration with any

entity such collaboration or joint venture must not
include activity activity letter (a) which is the holding
and conducting of sweepstakes races, lotteries and
other similar acts.

MR. ZAMORA.

We accept the amendment, Mr. Speaker.

MR. DAVIDE.

Thank you, Mr. Speaker.

THE SPEAKER.

Is there any objection to the amendment? (Silence)

The amendment, as amended, is approved. 57

Further amendments to paragraph B were introduced and approved. When Assemblyman Zamora
read the final text of paragraph B as further amended, the earlier approved amendment of
Assemblyman Davide became "EXCEPT FOR THE ACTIVITIES MENTIONED IN PARAGRAPH
(A)"; and by virtue of the amendment introduced by Assemblyman Emmanuel Pelaez, the word
PRECEDING was inserted before PARAGRAPH. Assemblyman Pelaez introduced other
amendments. Thereafter, the new paragraph B was approved. 58

This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42.

No interpretation of the said provision to relax or circumvent the prohibition can be allowed since the
privilege to hold or conduct charity sweepstakes races, lotteries, or other similar activities is a
franchise granted by the legislature to the PCSO. It is a settled rule that "in all grants by the
government to individuals or corporations of rights, privileges and franchises, the words are to be
taken most strongly against the grantee .... [o]ne who claims a franchise or privilege in derogation of
the common rights of the public must prove his title thereto by a grant which is clearly and definitely
expressed, and he cannot enlarge it by equivocal or doubtful provisions or by probable inferences.
Whatever is not unequivocally granted is withheld. Nothing passes by mere implication." 59

In short then, by the exception explicitly made in paragraph B, Section 1 of its charter, the PCSO
cannot share its franchise with another by way of collaboration, association or joint venture. Neither
can it assign, transfer, or lease such franchise. It has been said that "the rights and privileges
conferred under a franchise may, without doubt, be assigned or transferred when the grant is to the
grantee and assigns, or is authorized by statute. On the other hand, the right of transfer or
assignment may be restricted by statute or the constitution, or be made subject to the approval of
the grantor or a governmental agency, such as a public utilities commission, exception that an
existing right of assignment cannot be impaired by subsequent legislation." 60

It may also be pointed out that the franchise granted to the PCSO to hold and conduct lotteries
allows it to hold and conduct a species of gambling. It is settled that "a statute which authorizes the
carrying on of a gambling activity or business should be strictly construed and every reasonable
doubt so resolved as to limit the powers and rights claimed under its authority." 61
Does the challenged Contract of Lease violate or contravene the exception in Section 1 of R.A. No.
1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting lotteries
"in collaboration, association or joint venture with" another?

We agree with the petitioners that it does, notwithstanding its denomination or designation as a
(Contract of Lease). We are neither convinced nor moved or fazed by the insistence and forceful
arguments of the PGMC that it does not because in reality it is only an independent contractor for a
piece of work, i.e., the building and maintenance of a lottery system to be used by the PCSO in the
operation of its lottery franchise. Whether the contract in question is one of lease or whether the
PGMC is merely an independent contractor should not be decided on the basis of the title or
designation of the contract but by the intent of the parties, which may be gathered from the
provisions of the contract itself. Animus hominis est anima scripti. The intention of the party is the
soul of the instrument. In order to give life or effect to an instrument, it is essential to look to the
intention of the individual who executed it. 62 And, pursuant to Article 1371 of the Civil Code, "to
determine the intention of the contracting parties, their contemporaneous and subsequent acts shall
be principally considered." To put it more bluntly, no one should be deceived by the title or
designation of a contract.

A careful analysis and evaluation of the provisions of the contract and a consideration of the
contemporaneous acts of the PCSO and PGMC indubitably disclose that the contract is not in reality
a contract of lease under which the PGMC is merely an independent contractor for a piece of work,
but one where the statutorily proscribed collaboration or association, in the least, or joint venture, at
the most, exists between the contracting parties. Collaboration is defined as the acts of working
together in a joint project. 63 Association means the act of a number of persons in uniting together for
some special purpose or business. 64 Joint venture is defined as an association of persons or
companies jointly undertaking some commercial enterprise; generally all contribute assets and share
risks. It requires a community of interest in the performance of the subject matter, a right to direct
and govern the policy in connection therewith, and duty, which may be altered by agreement to
share both in profit and
losses.65

The contemporaneous acts of the PCSO and the PGMC reveal that the PCSO had neither funds of
its own nor the expertise to operate and manage an on-line lottery system, and that although it
wished to have the system, it would have it "at no expense or risks to the government." Because of
these serious constraints and unwillingness to bear expenses and assume risks, the PCSO was
candid enough to state in its RFP that it is seeking for "a suitable contractor which shall build, at its
own expense, all the facilities needed to operate and maintain" the system; exclusively bear "all
capital, operating expenses and expansion expenses and risks"; and submit "a comprehensive
nationwide lottery development plan . . . which will include the game, the marketing of the games,
and the logistics to introduce the game to all the cities and municipalities of the country within five (5)
years"; and that the operation of the on-line lottery system should be "at no expense or risk to the
government" meaning itself, since it is a government-owned and controlled agency.
The facilities referred to means "all capital equipment, computers, terminals, software, nationwide
telecommunications network, ticket sales offices, furnishings and fixtures, printing costs, costs of
salaries and wages, advertising and promotions expenses, maintenance costs, expansion and
replacement costs, security and insurance, and all other related expenses needed to operate a
nationwide on-line lottery system."

In short, the only contribution the PCSO would have is its franchise or authority to operate the on-
line lottery system; with the rest, including the risks of the business, being borne by the proponent or
bidder. It could be for this reason that it warned that "the proponent must be able to stand to the acid
test of proving that it is an entity able to take on the role of responsible maintainer of the on-line
lottery system." The PCSO, however, makes it clear in its RFP that the proponent can propose a
period of the contract which shall not exceed fifteen years, during which time it is assured of a
"rental" which shall not exceed 12% of gross receipts. As admitted by the PGMC, upon learning of
the PCSO's decision, the Berjaya Group Berhad, with its affiliates, wanted to offer its services and
resources to the PCSO. Forthwith, it organized the PGMC as "a medium through which the technical
and management services required for the project would be offered and delivered to PCSO." 66

Undoubtedly, then, the Berjaya Group Berhad knew all along that in connection with an on-line
lottery system, the PCSO had nothing but its franchise, which it solemnly guaranteed it had in the
General Information of the RFP. 67Howsoever viewed then, from the very inception, the PCSO and
the PGMC mutually understood that any arrangement between them would necessarily leave to the
PGMC the technical, operations, and managementaspects of the on-line lottery system while the
PCSO would, primarily, provide the franchise. The words Gaming andManagement in the corporate
name of respondent Philippine Gaming Management Corporation could not have been conceived
just for euphemistic purposes. Of course, the RFP cannot substitute for the Contract of Lease which
was subsequently executed by the PCSO and the PGMC. Nevertheless, the Contract of Lease
incorporates their intention and understanding.

The so-called Contract of Lease is not, therefore, what it purports to be. Its denomination as such is
a crafty device, carefully conceived, to provide a built-in defense in the event that the agreement is
questioned as violative of the exception in Section 1 (B) of the PCSO's charter. The acuity or skill of
its draftsmen to accomplish that purpose easily manifests itself in the Contract of Lease. It is
outstanding for its careful and meticulous drafting designed to give an immediate impression that it is
a contract of lease. Yet, woven therein are provisions which negate its title and betray the true
intention of the parties to be in or to have a joint venture for a period of eight years in the operation
and maintenance of the on-line lottery system.

Consistent with the above observations on the RFP, the PCSO has only its franchise to offer, while
the PGMC represents and warrants that it has access to all managerial and technical expertise to
promptly and effectively carry out the terms of the contract. And, for a period of eight years, the
PGMC is under obligation to keep all the Facilitiesin safe condition and if necessary, upgrade,
replace, and improve them from time to time as new technology develops to make the on-line lottery
system more cost-effective and competitive; exclusively bear all costs and expenses relating to the
printing, manpower, salaries and wages, advertising and promotion, maintenance, expansion and
replacement, security and insurance, and all other related expenses needed to operate the on-line
lottery system; undertake a positive advertising and promotions campaign for both institutional and
product lines without engaging in negative advertising against other lessors; bear the salaries and
related costs of skilled and qualified personnel for administrative and technical operations; comply
with procedural and coordinating rulesissued by the PCSO; and to train PCSO and other local
personnel and to effect the transfer of technology and other expertise, such that at the end of the
term of the contract, the PCSO will be able to effectively take over the Facilities and efficiently
operate the on-line lottery system. The latter simply means that, indeed, the managers, technicians
or employees who shall operate the on-line lottery system are not managers, technicians or
employees of the PCSO, but of the PGMC and that it is only after the expiration of the contract that
the PCSO will operate the system. After eight years, the PCSO would automatically become the
owner of the Facilities without any other further consideration.

For these reasons, too, the PGMC has the initial prerogative to prepare the detailed plan of all
games and the marketing thereof, and determine the number of players, value of winnings, and the
logistics required to introduce the games, including the Master Games Plan. Of course, the PCSO
has the reserved authority to disapprove them. 68 And, while the PCSO has the sole responsibility
over the appointment of dealers and retailers throughout the country, the PGMC may, nevertheless,
recommend for appointment dealers and retailers which shall be acted upon by the PCSO within
forty-eight hours and collect and retain, for its own account, a security deposit from dealers and
retailers in respect of equipment supplied by it.

This joint venture is further established by the following:

(a) Rent is defined in the lease contract as the amount to be paid to the PGMC as compensation for
the fulfillment of its obligations under the contract, including, but not limited to the lease of the
Facilities. However, this rent is not actually a fixed amount. Although it is stated to be 4.9% of gross
receipts from ticket sales, payable net of taxes required by law to be withheld, it may be drastically
reduced or, in extreme cases, nothing may be due or demandable at all because the PGMC binds
itself to "bear all risks if the revenue from the ticket sales, on an annualized basis, are insufficient to
pay the entire prize money." This risk-bearing provision is unusual in a lessor-lessee relationship, but
inherent in a joint venture.

(b) In the event of pre-termination of the contract by the PCSO, or its suspension of operation of the
on-line lottery system in breach of the contract and through no fault of the PGMC, the PCSO binds
itself "to promptly, and in any event not later than sixty (60) days, reimburse the Lessor the amount
of its total investment cost associated with the On-Line Lottery System, including but not limited to
the cost of the Facilities, and further compensate the LESSOR for loss of expected net profit after
tax, computed over the unexpired term of the lease." If the contract were indeed one of lease, the
payment of the expected profits or rentals for the unexpired portion of the term of the contract would
be enough.
(c) The PGMC cannot "directly or indirectly undertake any activity or business in competition with or
adverse to the On-Line Lottery System of PCSO unless it obtains the latter's prior written consent." If
the PGMC is engaged in the business of leasing equipment and technology for an on-line lottery
system, we fail to see any acceptable reason why it should allow a restriction on the pursuit of such
business.

(d) The PGMC shall provide the PCSO the audited Annual Report sent to its stockholders, and
within two years from the effectivity of the contract, cause itself to be listed in the local stock
exchange and offer at least 25% of its equity to the public. If the PGMC is merely a lessor, this
imposition is unreasonable and whimsical, and could only be tied up to the fact that the PGMC will
actually operate and manage the system; hence, increasing public participation in the corporation
would enhance public interest.

(e) The PGMC shall put up an Escrow Deposit of P300,000,000.00 pursuant to the requirements of
the RFP, which it may, at its option, maintain as its initial performance bond required to ensure its
faithful compliance with the terms of the contract.

(f) The PCSO shall designate the necessary personnel to monitor and audit the daily performance of
the on-line lottery system; and promulgate procedural and coordinating rules governing all activities
relating to the on-line lottery system. The first further confirms that it is the PGMC which will operate
the system and the PCSO may, for the protection of its interest, monitor and audit the daily
performance of the system. The second admits the coordinating and cooperative powers and
functions of the parties.

(g) The PCSO may validly terminate the contract if the PGMC becomes insolvent or bankrupt or is
unable to pay its debts, or if it stops or suspends or threatens to stop or suspend payment of all or a
material part of its debts.

All of the foregoing unmistakably confirm the indispensable role of the PGMC in the pursuit,
operation, conduct, and management of the On-Line Lottery System. They exhibit and demonstrate
the parties' indivisible community of interest in the conception, birth and growth of the on-line lottery,
and, above all, in its profits, with each having a right in the formulation and implementation of
policies related to the business and sharing, as well, in the losses with the PGMC bearing the
greatest burden because of its assumption of expenses and risks, and the PCSO the least, because
of its confessed unwillingness to bear expenses and risks. In a manner of speaking, each is wed to
the other for better or for worse. In the final analysis, however, in the light of the PCSO's RFP and
the above highlighted provisions, as well as the "Hold Harmless Clause" of the Contract of Lease, it
is even safe to conclude that the actual lessor in this case is the PCSO and the subject matter
thereof is its franchise to hold and conduct lotteries since it is, in reality, the PGMC which operates
and manages the on-line lottery system for a period of eight years.

We thus declare that the challenged Contract of Lease violates the exception provided for in
paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid for
being contrary to law. This conclusion renders unnecessary further discussion on the other issues
raised by the petitioners.

WHEREFORE, the instant petition is hereby GRANTED and the challenged Contract of Lease
executed on 17 December 1993 by respondent Philippine Charity Sweepstakes Office (PCSO) and
respondent Philippine Gaming Management Corporation (PGMC) is hereby DECLARED contrary to
law and invalid.

The Temporary Restraining Order issued on 11 April 1994 is hereby MADE PERMANENT.

No pronouncement as to costs.

SO ORDERED.

Separate Opinions

CRUZ, J., concurring:

I am happy to join Mr. Justice Hilario G. Davide, Jr. in his excellent ponencia. I will add the following
personal observations only for emphasis as it is not necessary to supplement his thorough
exposition.

The respondents take great pains to cite specific provisions of the contract to show that it is PCSO
that is actually operating the on-line lottery, but they have not succeeded in disproving the obvious,
to wit, that the document was intentionally so crafted to make it appear that the operation is not a
joint undertaking of PCSO and PGMC but a mere lease of services. It is a clever instrument, to be
sure, but we are, gratifyingly, not deluded. Lawyers have a special talent to disguise the real
intention of the parties in a contract to make it come ostensibly within the provisions of a law
although the real if furtive purpose is to violate it. That talent has been exercised in this case, but not
convincingly enough.

It should be quite clear, from the adroit way the contract has been drafted, that the primary objective
was to avoid the conclusion that PCSO will be operating a lottery "in association, collaboration or
joint venture with any person, association, company or entity," which is prohibited by Section 1 of
Rep. Act No. 1169 as amended by B.P. Blg. 42. Citing the self-serving provisions of the contract, the
respondents would have us believe that the contract is perfectly lawful because all it does is provide
for the lease to PCSO of the technical know-how and equipment of PGMC, with PCSO acting as "the
sole and individual operator" of the lottery. I am glad we are not succumbing to this sophistry.

Despite the artfulness of the contract (authorship of which was pointedly denied by both counsel for
the government and the private respondent during the oral argument on this case), a careful study
will reveal telling stipulations that it is PGMC and not PCSO that will actually be operating the lottery.
Thus, it is provided inter alia that PGMC shall furnish all capital equipment and other facilities
needed for the operation; bear all expenses relating to the operation, including those for the salaries
and wages of the administrative and technical personnel; undertake a positive advertising and
promotion campaign for public support of the lottery; establish a radio communications network
throughout the country as part of the operation; and assume all risks if the revenues from ticket sales
are insufficient to pay the entire prize money. Most significantly, to show that it is only after eight
years from the effectivity of the contract that PCSO will actually operate the lottery, Par. 6.7 of the
agreement provides that PGMC shall:

6.7. Upon effectivity of this Contract, commence the training of PCSO and other local
personnel and the transfer of technology and expertise, such that at the end of the
term of this Contract, PCSO will be able to effectively take-over the Facilities and
efficiently operate the On-Line Lottery System. (Emphasis supplied).

In the meantime, that is to say during the entire 8-year term of the contract, it will be PGMC that will
be operating the lottery. Only "at the end of the term of this Contract" will PCSO "be able to
effectively take-over the Facilities and efficiently operate the On-Line Lottery System."

Even on the assumption that it is PCSO that will be operating the lottery at the very start, the
authority granted to PGMC by the agreement will readily show that PCSO will not be acting alone, as
the respondents pretend. In fact, it cannot. PGMC is an indispensable co-worker because it has the
equipment and the technology and the management skills that PCSO does not have at this time for
the operation of the lottery, PCSO cannot deny that it needs the assistance of PGMC for this
purpose, which was its reason for entering into the contract in the first place.

And when PCSO does avail itself of such assistance, how will it be operating the lottery?
Undoubtedly, it will be doing so "in collaboration, association or joint venture" with PGMC, which, let
it be added, will not be serving as a mere "hired help" of PCSO subject to its control. PGMC will be
functioning independently in the discharge of its own assigned role as stipulated in detail under the
contract. PGMC is plainly a partner of PCSO in violation of law, no matter how PGMC's assistance is
called or the contract is denominated.

Even if it be conceded that the assistance partakes of a lease of services, the undeniable fact is that
PCSO would still be collaborating or cooperating with PGMC in the operation of the lottery. What is
even worse is that PCSO and PGMC may be actually engaged in a joint venture, considering that
PGMC does not collect the usual fixed rentals due an ordinary lessor but is entitled to a special
"Rental Fee," as the contract calls it, "equal to four point nine percent (4.9%) of gross receipts from
ticket sales."
The flexibility of this amount is significant. As may be expected, it will induce in PGMC an active
interest and participation in the success of PCSO that is not expected of an ordinary detached lessor
who gets to be paid his rentals not a rental fee whether the lessee's business prospers or not.
PGMC's share in the operation depends on its own performance and the effectiveness of its
collaboration with PCSO. Although the contract pretends otherwise, PGMC is a co-investor with
PCSO in what is practically, if not in a strictly legal sense, a joint venture.

Concerning the doctrine of locus standi, I cannot agree that out of the sixty million Filipinos affected
by the proposed lottery, not a single solitary citizen can question the agreement. Locus standi is not
such an absolute rule that it cannot admit of exceptions under certain conditions or circumstances
like those attending this transaction. As I remarked in my dissent in Guazon v. De Villa, 181 SCRA
623, "It is not only the owner of the burning house who has the right to call the firemen. Every one
has the right and responsibility to prevent the fire from spreading even if he lives in the other block."

What is especially galling is that the transaction in question would foist upon our people an
essentially immoral activity through the instrumentality of a foreign corporation, which naturally does
not have the same concern for our interests as we ourselves have. I am distressed that foreigners
should be allowed to exploit the weakness of some of us for instant gain without work, and with the
active collaboration and encouragement of our own government at that.

Feliciano, J., concurring

I agree with the conclusions reached by my distinguished brother in the Court Davide, Jr., J., both in
respect of the question of locus standi and in respect of the merits of this case, that is, the issues of
legality and constitutionality of the Contract of Lease entered into between the Philippine Charity
Sweepstakes Office (PCSO) and the Philippine Gaming Management Corporation (PGMC).

In this separate opinion, I propose to address only the question of locus standi. It is with some
hesitation that I do so, considering the extensive separate opinions on this question written by my
learned brothers Melo, Puno and Vitug, JJ. I agree with the great deal of what my brothers Melo,
Puno and Vitug say about locus standi in their separate opinions and there is no need to go over the
ground that I share with them. Because, however, I reach a different conclusion in respect of the
presence or absence of locus standi on the part of the petitioners in the case before the Court, there
is an internal need (a need internal to myself) to articulate the considerations which led me to that
conclusion.

There is no dispute that the doctrine of locus standi reflects an important constitutional principle, that
is, the principle of separation of powers which, among other things, mandates that each of the great
Departments of government is responsible for performance of its constitutionally allotted tasks.
Insofar as the Judicial Department is concerned, the exercise of judicial power and carrying out of
judicial functions commonly take place within the context of actual cases or controversies. This, in
turn, reflects the basic notion of judicial power as the power to resolve actual disputes and of the
traditional business of courts as the hearing and deciding of specific controversies brought before
them. In our own jurisdiction, and at least since the turn of the present century, judicial power has
always included the power of judicial review, understood as the authority of courts (more specifically
the Supreme Court) to assay contested legislative and executive acts in terms of their
constitutionality or legality. Thus, the general proposition has been that a petitioner who assails the
legal or constitutional quality of an executive or legislative act must be able to show that he
has locus standi. Otherwise, the petition becomes vulnerable to prompt dismissal by the court.

There is, upon the other hand, little substantive dispute that the possession of locus standi 1 is not, in
each and every case, a rigid and absolute requirement for access to the courts. Certainly that is the
case where great issues of public law are at stake, issues which cannot be approached in the same
way that a court approaches a suit for the collection of a sum of money or a complaint for the
recovery of possession of a particular piece of land. The broad question is when, or in what types of
cases, the court should insist on a clear showing of locus standiunderstood as a direct and personal
interest in the subject matter of the case at bar, and when the court may or should relax that
apparently stringent requirement and proceed to deal with the legal or constitutional issues at stake
in a particular case.

I submit, with respect, that it is not enough for the Court simply to invoke "public interest" or even
"paramount considerations of national interest," and to say that the specific requirements of such
public interest can only be ascertained on a "case to case" basis. For one thing, such an approach is
not intellectually satisfying. For another, such an answer appears to come too close to saying
that locus standi exists whenever at least a majority of the Members of this Court participating in a
case feel that an appropriate case for judicial intervention has arisen.

This is not, however, to say that there is somewhere an over-arching juridical principle or theory,
waiting to be discovered, that permits a ready answer to the question of when, or in what types of
cases, the need to show locus standi may be relaxed in greater or lesser degree. To my knowledge,
no satisfactory principle or theory has been discovered and none has been crafted, whether in our
jurisdiction or in the United States. 2 I have neither the competence nor the opportunity to try to craft
such principle or formula. It might, however, be useful to attempt to indicate the considerations of
principle which, in the present case, appear to me to require an affirmative answer to the question of
whether or not petitioners are properly regarded as imbued with the standing necessary to bring and
maintain the present petition.

Firstly, the character of the funds or other assets involved in the case is of major importance. In the
case presently before the Court, the funds involved are clearly public in nature. The funds to be
generated by the proposed lottery are to be raised from the population at large. Should the proposed
operation be as successful as its proponents project, those funds will come from well-nigh every
town and barrio of Luzon. The funds here involved are public in another very real sense: they will
belong to the PCSO, a government owned or controlled corporation and an instrumentality of the
government and are destined for utilization in social development projects which, at least in principle,
are designed to benefit the general public. My learned brothers Melo, Puno and Vitug, JJ. concede
that taxpayers' suits have been recognized as an exception to the traditional requirement of
recognized as an exception to the traditional requirement of locus standi. They insist, however, that
because the funds here involved will not have been generated by the exercise of the taxing power of
the Government, the present petition cannot be regarded as a taxpayer's suit and therefore, must be
dismissed by the Court. It is my respectful submission that that constitutes much too narrow a
conception of the taxpayer's suit and of the public policy that it embodies. It is also to overlook the
fact that tax monies, strictly so called, constitute only one (1) of the major categories of funds today
raised and used for public purposes. It is widely known that the principal sources of funding for
government operations today include, not just taxes and customs duties, but also revenues derived
from activities of the Philippine Amusement Gaming Corporation (PAGCOR), as well as the
proceeds of privatization of government owned or controlled corporations and other government
owned assets. The interest of a private citizen in seeing to it that public funds, from whatever source
they may have been derived, go only to the uses directed and permitted by law is as real and
personal and substantial as the interest of a private taxpayer in seeing to it that tax monies are not
intercepted on their way to the public treasury or otherwise diverted from uses prescribed or allowed
by law. It is also pertinent to note that the more successful the government is in raising revenues by
non-traditional methods such as PAGCOR operations and privatization measures, the lesser will be
the pressure upon the traditional sources of public revenues, i.e., the pocket books of individual
taxpayers and importers.

A second factor of high relevance is the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government. A
showing that a constitutional or legal provision is patently being disregarded by the agency or
instrumentality whose act is being assailed, can scarcely be disregarded by court. The concept
of locus standi which is part and parcel of the broader notion of ripeness of the case "does not
operate independently and is not alone decisive. . . . [I]t is in substantial part a function of a judge's
estimate of the merits of the constitutional [or legal] issue." 3 The notion of locus standi and the
judge's conclusions about the merits of the case, in other words, interact with each other. Where the
Court perceives a serious issue of violation of some constitutional or statutory limitation, it will be
much less difficult for the Court to find locus standi in the petitioner and to confront the legal or
constitutional issue. In the present case, the majority of the Court considers that a very substantial
showing has been made that the Contract of Lease between the PCSO and the PGMC flies in the
face of legal limitations.

A third consideration of importance in the present case is the lack of any other party with a more
direct and specific interest in raising the questions here being raised. Though a public bidding was
held, no losing or dissatisfied bidder has come before the Court. The Office of the Ombudsman has
not, to the knowledge of the Court, raised questions about the legality or constitutionality of the
Contract of Lease here involved. The National Government itself, through the Office of the Solicitor
General, is defending the PCSO Contract (though it had not participated in the drafting thereof). In a
situation like that here obtaining, the submission may be made that the institution, so well known in
corporation law and practice, of the corporate stockholders' derivative suit furnishes an appropriate
analogy and that on the basis of such an analogy, a taxpayer's derivative suit should be recognized
as available.

The wide range of impact of the Contract of Lease here assailed and of its implementation,
constitutes still another consideration of significance. In the case at bar, the agreement if
implemented will be practically nationwide in its scope and reach (the PCSO-PGMC Contract is
limited in its application to the Island of Luzon; but if the PCSO Contracts with the other two [2]
private "gaming management" corporations in respect of the Visayas and Mindanao are substantially
similar to PCSO's Contract with PGMC, then the Contract before us may be said to be national
indeed in its implications and consequences). Necessarily, the amounts of money expected to be
raised by the proposed activities of the PCSO and PGMC will be very substantial, probably in the
hundreds of millions of pesos. It is not easy to conceive of a contract with greater and more far-
reaching consequences, literally speaking, for the country than the Contract of Lease here involved.
Thus, the subject matter of the petition is not something that the Court may casually pass over as
unimportant and as not warranting the expenditure of significant judicial resources.

In the examination of the various features of this case, the above considerations have appeared to
me to be important and as pressing for acceptance and exercise of jurisdiction on the part of this
Court. It is with these considerations in mind that I vote to grant due course to the Petition and to
hold that the Contract of Lease between the PCSO and PGMC in its present form and content, and
given the present state of the law, is fatally defective.

PADILLA, J., concurring:

My views against gambling are a matter of judicial record. In Basco v. PAGCOR, (G.R. No. 91649,
14 May 1991, 197 SCRA 52) I expressed these views in a separate opinion where I was joined by
that outstanding lady jurist, Mme. Justice A. Melencio-Herrera whose incisive approach to legal
problems is today missed in this Court. I reproduce here those views because they are highly
persuasive to the conclusions I reach in the present controversy:

I concur in the result of the learned decision penned by my brother Mr. Justice Paras.
This means that I agree with the decision insofar as it holds that the prohibition,
control, and regulation of the entire activity known as gambling properly pertain to
"state policy." It is, therefore, the political departments of government, namely, the
legislative and the executive that should decide on what government should do in the
entire area of gambling, and assume full responsibility to the people for such policy.

The courts, as the decision states, cannot inquire into the wisdom, morality or
expediency of policies adopted by the political departments of government in areas
which fall within their authority, except only when such policies pose a clear and
present danger to the life, liberty or property of the individual. This case does not
involve such a factual situation.

However, I hasten to make of record that I do not subscribe to gambling in any form.
It demeans the human personality, destroys self-confidence and eviscerates one's
self-respect, which in the long run will corrode whatever is left of the Filipino moral
character. Gambling has wrecked and will continue to wreck families and homes; it is
an antithesis to individual reliance and reliability as well as personal industry which
are the touchstones of real economic progress and national development.

Gambling is reprehensible whether maintained by government or privatized. The

revenues realized by the government out of "legalized" gambling will, in the long run,
be more than offset and negated by the irreparable damage to the people's moral
values.

Also, the moral standing of the government in its repeated avowals against "illegal
gambling" is fatally flawed and becomes untenable when it itself engages in the very
activity it seeks to eradicate.

One can go through the Court's decision today and mentally replace the activity
referred to therein as gambling, which is legal only because it is authorized by law
and run by the government, with the activity known as prostitution. Would prostitution
be any less reprehensible were it to be authorized by law, franchised, and
"regulated" by the government, in return for the substantial revenues it would yield
 the government to carry out its laudable projects, such as infrastructure and social
amelioration? The question, I believe, answers itself. I submit that the sooner the
legislative department outlaws all forms of gambling, as a fundamental state policy,
and the sooner the executive implements such policy, the better it will be for the
nation.

We presently have the sweepstakes lotteries; we already have the PAGCOR's gambling casinos; the
Filipino people will soon, if plans do not miscarry, be initiated into an even more sophisticated and
encompassing nationwide gambling network known as the "on-line hi-tech lotto system." To be sure,
it is not wealth producing; it is not export oriented. It will draw from existing wealth in the hands of
Filipinos and transfer it into the coffers of the PCSO and its foreign partners at a price of further
debasement of the moral standards of the Filipino people, the bulk of whom are barely subsisting
below the poverty line.

1. It is said that petitioners 1 have no locus standi to bring this suit even as they
challenge the legality and constitutionality of a contract of lease between the PCSO,
a government-owned corporation and the PGMC, a private corporation with
substantial (if not controlling) foreign composition and content. Such contract of lease
contains the terms and conditions under which an "on-line hi-tech lotto system" will
operate in the country.

As the ponente of the extended, unsigned en banc resolution in Valmonte v. PCSO, (G.R. No. 78716
and G.R. No. 79084, 22 September 1987), I would be the last to downgrade the rule, therein
reiterated, that in order to maintain a suit challenging the constitutionality and/or legality of a statute,
order or regulation or assailing a particular governmental action as done with grave abuse of
discretion or with lack of jurisdiction, the petitioner must show that he has a clear personal or legal
right that would be violated with the enforcement of the challenged statute, order or regulation or the
implementation of the questioned governmental action. But, in my considered view, this rule maybe
(and should be) relaxed when the issue involved or raised in the petition is of such paramount
national interest and importance as to dwarf the above procedural rule into a barren technicality. As
a unanimous Court en banc aptly put it in De Guia vs. COMELEC, G.R. No. 104712, 6 May 1992,
208 SCRA 420.

Before addressing the crux of the controversy, the Court observes that petitioner
does not allege that he is running for re-election, much less, that he is prejudiced by
the election, by district, in Paraaque. As such, he does not appear to have locus
standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC,
G.R. No. L-4640, October 12, 1976. 73 SCRA 333; Municipality of Malabang vs.
Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533) He does not also allege
any legal right that has been violated by respondent. If for this alone, petitioner does
not appear to have any cause of action.

However, considering the importance of the issue involved, concerning as it does the
political exercise of qualified voters affected by the apportionment, and petitioner
alleging abuse of discretion and violation of the Constitution by respondent, We
resolved to brush aside the question of procedural infirmity, even as We perceive the
petition to be one of declaratory relief. We so held similarly through Mr. Justice
Edgardo L. Paras in Osmea vs. Commission on Elections.

I view the present case as falling within the De Guia case doctrine. For, when the contract of lease in
question seeks to establish and operate a nationwide gambling network with substantial if not
controlling foreign participation, then the issue is of paramount national interest and importance as to
justify and warrant a relaxation of the above-mentioned procedural rule on locus standi.

2. The charter of the PCSO Republic Act No. 1169 as amended by BP No. 42
insofar as relevant, reads:

Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity

Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs, medical
assistance and services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered One Thousand
Four Hundred Fifty-Nine, as amended, and shall have the authority:
 A. To hold and conduct charity sweepstakes races, lotteries and other similar
activities, in such frequency and manner, as shall be determined, and subject to such
rules and regulations as shall be promulgated by the Board of Directors.

B. Subject to the approval of the Minister of Human Settlements, to engage in health

and welfare-related investments, programs, projects and activities which may be
profit-oriented, by itself or in collaboration, association or joint venture with any
person, association, company or entity, whether domestic or foreign, except for the
activities mentioned in the preceding paragraph (A), for the purpose of providing for
permanent and continuing sources of funds for health programs, including the
expansion of existing ones, medical assistance and services, and/or charitable
grants: Provided, That such investments will not compete with the private sector in
areas where investments are adequate as may be determined by the National
Economic and Development Authority.

It is at once clear from the foregoing legal provisions that, while the PCSO charter allows the PCSO
to itself engage in lotteries, it does not however permit the PCSO to undertake or engage in lotteries
in "collaboration, association or joint venture" with others. The palpable reason for this prohibition is,
that PCSO should not and cannot be made a vehicle for an otherwise prohibited foreign or domestic
entity to engage in lotteries (gambling activities) in the Philippines.

The core question then is whether the lease contract between PCSO and PGMC is a device
whereby PCSO will engage in lottery in collaboration, association or joint venture with another, i.e.
PGMC. I need not go here into the details and different specific features of the contract to show that
it is a joint venture between PCSO and PGMC. That has been taken care of in the opinion of Mr.
Justice Davide to which I fully subscribe.

On a slightly different plane and, perhaps simplified, I consider the agreement or arrangement
between the PCSO and PGMC a joint venture because each party to the contract contributes its
share in the enterprise or project. PGMC contributes its facilities, equipment and know-how
(expertise). PCSO contributes (aside from its charter) the market, directly or through dealers and
this to me is most important in the totality or mass of the Filipinogambling elements who will invest
in lotto tickets. PGMC will get its 4.9% of gross receipts (with assumption of certain risks in the
course of lotto operations); the residue of the whole exercise will go to PCSO. To any person with a
minimum of business know-how, this is a joint venture between PCSO and PGMC, plain and simple.

But assuming ex gratia argumenti that such arrangement between PCSO and PGMC is not a joint
venture between the two of them to install and operate an "on-line hi-tech lotto system" in the
country, it can hardly be denied that it is, at the very least, an association or collaboration between
PCSO and PGMC. For one cannot do without the other in the installation, operation and, most
importantly, marketing of the entire enterprise or project in this country.

Indeed, the contract of lease in question is a clear violation of Republic Act No. 1169 as amended by
BP No. 42 (the PCSO charter).

Having arrived at the conclusion that the contract of lease in question between the PCSO and
PGMC is illegal and, therefore, invalid, I find it unnecessary to dwell on the other issues raised in the
pleadings and arguments of the parties.

I, therefore, vote to give DUE COURSE to the petition and to declare the contract of lease in
question between PCSO and PGMC, for the reasons aforestated, of no force and effect.

MELO, J., dissenting:

I submit that the petition before the Court deserves no less than outright dismissal for the reason that
petitioners, as concerned citizens and as taxpayers and as members of Congress, do not possess
the necessary legal standing to assail the validity of the contract of lease entered into by the
Philippine Charity Sweepstakes Office and the Philippine Gaming Management Corporation relative
to the establishment and operation of an "On-line Hi-Tech Lottery System" in the country.

As announced in Lamb vs. Phipps (22 Phil. [1912], 559), "[J]udicial power in its nature, is the power
to hear and decide causes pending between parties who have the right to sue and be sued in the
courts of law and equity." Necessarily, this implies that a party must show a personal stake in the
outcome of the controversy or an injury to himself that can be addressed by a favorable decision so
as to warrant his invocation of the court's jurisdiction and to justify the court's remedial powers in his
behalf (Warth vs. Seldin, 422 U.S. 490; Guzman vs. Marrero, 180 U.S. 81; McMicken vs. United
States, 97 U.S. 204). Here, we have yet to see any of petitioners acquiring a personal stake in the
outcome of the controversy or being placed in a situation whereby injury may be sustained if the
contract of lease in question is implemented. It may be that the contract has somehow evoked public
interest which petitioners claim to represent. But the alleged public interest which they pretend to
represent is not only broad and encompassing but also strikingly and veritably indeterminate that
one cannot truly say whether a handful of the public, like herein petitioners, may lay a valid claim of
representation in behalf of the millions of citizens spread all over the land who may have just as
many varied reactions relative to the contract in question.

Any effort to infuse personality on petitioners by considering the present case as a "taxpayer's suit"
could not cure the lack of locus standi on the part of petitioners. As understood in this jurisdiction, a
"taxpayer's suit" refers to a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation (Pascual vs. Secretary of Public Works, 110 Phil.
[1960] 331; Maceda vs. Macaraig, 197 SCRA [1991]; Lozada vs. COMELEC, 120 SCRA [1983] 337;
Dumlao vs. COMELEC, 95 SCRA [1980] 392; Gonzales vs. Marcos, 65 SCRA [1975] 624). It cannot
be overstressed that no public fund raised by taxation is involved in this case. In fact, it is even
doubtful if the rentals which the PCSO will pay to the lessor for its operation of the lottery system
may be regarded as "public fund". The PCSO is not a revenue- collecting arm of the government.
Income or money realized by it from its operations will not and need not be turned over to the
National Treasury. Rather, this will constitute corporate funds which will remain with the corporation
to finance its various activities as authorized in its charter. And if ever some semblance of "public
character" may be said to attach to its earnings, it is simply because PCSO is a government-owned
or controlled entity and not a purely private enterprise.

It must be conceded though that a "taxpayer's suit" had been allowed in a number of instances in
this jurisdiction. For sure, after the trial was blazed by Pascual vs. Secretary of Public Works, supra,
several more followed. It is to be noted, however, that in those occasions where this Court allowed
such a suit, the case invariably involved either the constitutionality of a statute or the legality of the
disbursement of public funds through the enforcement of what was perceived to be an invalid or
unconstitutional statute or legislation (Pascual, supra; Philippine Constitution Association, Inc. vs.
Jimenez, 15 SCRA [1965] 479; Philippine Constitution Association, Inc. vs. Mathay, 18 SCRA [1966]
300; Tolentino vs. COMELEC, 41 SCRA [1971] 702; Pelaez vs. Auditor General, 15 SCRA [1965]
569; Iloilo Palay and Corn Planters Association vs. Feliciano, 13 SCRA [1965] 377).

The case before us is not a challenge to the validity of a statute or an attempt to restrain expenditure
of public funds pursuant to an alleged invalid congressional enactment. What petitioners ask us to
do is to nullify a simple contract of lease entered into by a government-owned corporation with a
private entity. That contract, as earlier pointed out, does not involve the disbursement of public funds
but of strictly corporate money. If every taxpayer, claiming to have interest in the contract, no matter
how remote, could come to this Court and seek nullification of said contract, the day may come
when the activities of government corporate entities will ground to a standstill on account of nuisance
suits filed against them by persons whose supposed interest in the contract is as remote and as
obscure as the interest of any man in the street. The dangers attendant thereto are not hard to
discern and this Court must not allow them to come to pass.

One final observation must be emphasized. When the petition at bench was filed, the Court decided
to hear the case on oral argument on the initial perception that a constitutional issue could be
involved. However, it now appears that no question of constitutional dimension is at stake as indeed
the majority barely touches on such an issue, concentrating as it does on its interpretation of the
contract between the Philippine Charity Sweepstakes Office and the Philippine Gaming
Management Corporation.

I, therefore, vote to dismiss the petition.

PUNO, J., dissenting:

At the outset, let me state that my religious faith and family upbringing compel me to regard
gambling, regardless of its garb, with hostile eyes. Such antagonism tempts me to view the case at
bench as a struggle between good and evil, a fight between the forces of light against the forces of
darkness. I will not, however, yield to that temptation for we are not judges of the Old Testament
type who were not only arbiters of law but were also high priests of morality.
I will therefore strictly confine the peregrinations of my mind to the legal issues for resolution: (1)
whether or not the petitioners have the Locus standi to file the petition at bench; and (2) assuming
their locus standi, whether or not the Contract of Lease between PCSO and PGMC is null and void
considering: (a) section 1 of R.A. No. 1169, as amended by B.P. Blg. 42 (Charter of PCSO) which
prohibits PCSO from holding and conducting lotteries "in collaboration, association or joint venture
with any person, association, company or entity"; (b) Act No. 3836 which requires a congressional
franchise before any person or entity can establish and operate a telecommunication system; (c)
section 11, Art. XII of the Constitution, which requires that for a corporation to operate a public utility,
at least 60% of its capital must be owned by Filipino citizens; and (d) R.A. No. 7042, otherwise
known as the "Foreign Investments Act", which includes all forms of gambling in its "negative list."

While the legal issues abound, I deferentially submit that the threshold issue is the locus standi, or
standing to sue, of petitioners. The petition describes petitioner Kilosbayan, Inc., as a non-stock
corporation composed of "civic spirited citizens, pastors, priests, nuns, and lay leaders who are
committed to the cause of truth, justice, and national renewal." 1 Petitioners Jovito R. Salonga, Cirilo
A. Rigos, Ernie Camba, Emilio C. Capulong, Jr., Jose Abcede, Christine Tan, Felipe L. Gozon,
Rafael G. Fernando, Raoul V. Victorino, Jose Cunanan, and Quintin S. Doromal joined the petition in
their capacity as trustees of Kilosbayan, Inc., and as taxpayers and concerned citizens. 2 Petitioners
Freddie Webb and Wigberto Taada joined the petition as senators, taxpayers and concerned
citizens. 3 Petitioner Joker P. Arroyo joined the petition as a member of the House of Representative,
a taxpayer and a concerned citizen. 4

With due respect to the majority opinion, I wish to focus on the interstices of locus standi, a concept
described by Prof. Paul Freund as "among the most amorphous in the entire domain of public law."
The requirement of standing to sue inheres from the definition of judicial power. It is not merely a
technical rule of procedure which we are at liberty to disregard. Section 1, Article VIII of the
Constitution provides:

xxx xxx xxx

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Italics supplied)

The phrase "actual controversies involving rights which are legally demandable and enforceable"
has acquired a cultivated meaning given by courts. It spells out the requirements that must be
satisfied before one can come to court to litigate a constitutional issue. Our distinguished colleague,
Mr. Justice Isagani A. Cruz, gives a shorthand summary of these requirements when he states that
no constitutional question will be heard and decided by courts unless there is a showing of the
following: . . . (1) there must be an actual case or controversy; (2) the question of constitutionality
must be raised by the proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision of the constitutional question must be necessary to the
determination of the case itself. 5

The complexion of the rule on locus standi has been undergoing a change. Mr. Justice Cruz has
observed the continuing relaxation of the rule on
standing, 6 thus:

xxx xxx xxx

A proper party is one who has sustained or is in immediate danger of sustaining an

injury as a result of the act complained of. Until and unless such actual or potential
injury is established, the complainant cannot have the legal personality to raise the
constitutional question.

In Tileson v. Ullmann, a physician questioned the constitutionality of a law prohibiting

the use of contraceptives, upon the ground that it might prove dangerous to the life or
health of some of his patients whose physical condition would not enable them to
bear the rigors of childbirth. The court dismissed the challenge, holding that the
patients of the physician and not the physician himself were the proper parties.
In Cuyegkeng v. Cruz, the petitioner challenged in a quo warranto proceeding the
title of the respondent who, he claimed, had been appointed to the board of medical
examiners in violation of the provisions of the Medical Act of 1959. The Supreme
Court dismissed the petition, holding that Cuyegkeng had not made a claim to the
position held by Cruz and therefore could not be regarded as a proper party who had
sustained an injury as a result of the questioned act.

In People v. Vera, it was held that the Government of the Philippines was a proper
party to challenge the constitutionality of the Probation Act because, more than any
other, it was the government itself that should be concerned over the validity of its
own laws.

In Ex Parte Levitt, the petitioner, an American taxpayer and member of the bar, filed
a motion for leave to question the qualifications of Justice Black who, he averred,
had been appointed to the U.S. Supreme Court in violation of the Constitution of the
United States. The Court dismissed the petition, holding that Levitt was not a proper
party since he was not claiming the position held by Justice Black.

The rule before was that an ordinary taxpayer did not have the proper party
personality to question the legality of an appropriation law since his interest in the
sum appropriated was not substantial enough. Thus, in Custodio v. Senate
President, a challenge by an ordinary taxpayer to the validity of a law granting back
pay to government officials, including members of Congress, during the period
corresponding to the Japanese Occupation was dismissed as having been
commenced by one who was not a proper party.

Since the first Emergency Powers Cases, however, the rule has been changed and it
is now permissible for an ordinary taxpayer, or a group of taxpayers, to raise the
question of the validity of an appropriation law. As the Supreme Court then put it.
"The transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of
procedure."

In Tolentino v. Commission on Elections, it was held that a senator had the proper
party personality to seek the prohibition of a plebiscite for the ratification of a
proposed constitutional amendment. In PHILCONSA v. Jimenez, an organization of
taxpayers and citizens was held to be a proper party to question the constitutionality
of a law providing for special retirement benefits for members of the legislature.

In Sanidad v. Commission on Elections, the Supreme Court upheld the petitioners as

proper parties, thus

As a preliminary resolution, We rule that the petitioners in L-44640

(Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to
challenge the constitutional premise of Presidential Decree Nos. 991,
1031, and 1033. It is now an ancient rule that the valid source of a
statute Presidential Decrees are of such nature may be
contested by one who will sustain a direct injury as a result of its
enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that
the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a
misapplication of such funds. The breadth of Presidential Decree No.
991 carries an appropriation of Five Million Pesos for the effective
implementation of its purposes. Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions.
The interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money sufficiently clothes
them with that personality to litigate the validity of the Decrees
appropriating said funds. Moreover, as regard taxpayer's suits, this
Court enjoys that open discretion to entertain the same or not. For the
present case, We deem it sound to exercise that discretion
affirmatively so that the authority upon which the disputed Decrees
are predicated may be inquired into.
 In Lozada v. Commission on Elections, however, the petitioners were held without
legal standing to demand the filling of vacancies in the legislature because they had
only "a generalized interest' shared with the rest of the citizenry."

Last July 30, 1993, we further relaxed the rule on standing in Oposa, et al. v. Hon. Fulgencio S.
Factoran, Jr., 7where we recognized the locus standi of minors representing themselves as well as
generations unborn to protect their constitutional right to a balanced and healthful ecology.

I am perfectly at peace with the drift of our decisions liberalizing the rule on locus standi. The once
stubborn disinclination to decide constitutional issues due to lack of locus standi is incompatible with
the expansion of judicial power mandated in section 1 of Article VIII of the Constitution, i.e., "to
determine whether or not there has been a grave abuse of discretion, amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." As we held thru the
ground breaking ponencia of Mr. Justice Cruz in Daza v. Singson, 8 this provision no longer
precludes the Court from resolving political questions in proper cases. But even perusing this
provision as a constitutional warrant for the court to enter the once forbidden political thicket, it is
clear that the requirement of locus standi has not been jettisoned by the Constitution for it still
commands courts in no uncertain terms to settle only "actual controversies involving rights which are
legally demandable and enforceable." Stated otherwise, courts are neither free to decide all kinds of
cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a
grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is
intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to
warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of
government." 9 It thus goes to the very essence of representative democracies. As Mr. Justice Powell
carefully explained in U.S. v.
Richardson, 10 viz:

Relaxation of standing requirements is directly related to the expansion of judicial

power. It seems to me inescapable that allowing unrestricted taxpayer or citizen
standing would significantly alter the allocation of power at the national level, with a
shift away from a democratic form of government. I also believe that repeated and
essentially head-on confrontations between the life-tenured branch and the
representative branches of government will not, in the long run, be beneficial to
either. The public confidence essential to the former and the vitality critical to the
latter may well erode if we do not exercise self- restraint in the utilization of our power
to negative the actions of the other branches. We should be ever mindful of the
contradictions that would arise if a democracy were to permit at large oversight of the
elected branches of government by a non-representative, and in large measure
insulated, judicial branch. Moreover, the argument that the Court should allow
unrestricted taxpayer or citizen standing underestimates the ability of the
representative branches of the Federal Government to respond to the citizen
pressure that has been responsible in large measure for the current drift toward
expanded standing. Indeed, taxpayer or citizen advocacy, given its potentially broad
base, is precisely the type of leverage that in a democracy ought to be employed
against the branches that were intended to be responsive to public attitudes about
the appropriate operation of government. "We must as judges recall that, as Mr.
Justice Holmes wisely observed, the other branches of Government are ultimate
guardians of the liberties and welfare of the people in quite as great a degree as the
courts."

Unrestrained standing in federal taxpayer or citizen suits would create a remarkably

illogical system of judicial supervision of the coordinate branches of the Federal
Government. Randolph's proposed Council of Revision, which was repeatedly
rejected by the Framers, at least had the virtue of being systematic; every law
passed by the legislature automatically would have been previewed by the judiciary
before the law could take effect. On the other hand, since the judiciary cannot select
the taxpayers or citizens who bring suit or the nature of the suits, the allowance of
public actions would produce uneven and sporadic review, the quality of which would
be influenced by the resources and skill of the particular plaintiff. And issues would
be presented in abstract form, contrary to the Court's recognition that "judicial review
is effective largely because it is not available simply at the behest of a partisan
faction, but is exercised only to remedy a particular, concrete injury." Sierra Club v.
Morton, 405 U.S. 727, 740-741, n. 16 (1972).
A lesser but not insignificant reason for screening the standing of persons who desire to litigate
constitutional issues is economic in character. Given the sparseness of our resources, the capacity
of courts to render efficient judicial service to our people is severely limited. For courts to
indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden
their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is
an evil that clearly confronts our judiciary today.

Prescinding from these premises, and with great reluctance, I am not prepared to concede the
standing to sue of petitioners. On a personal level, they have not shown that elemental injury in fact
which will endow them with a standing to sue. It must be stressed that petitioners are in the main,
seeking the nullity not of a law but of a Contract of Lease. Not one of the petitioners is a party to the
Contract of Lease executed between PCSO and PGMC. None of the petitioners participated in the
bidding, and hence they are not losing bidders. They are complete strangers to the contract. They
stand neither to gain nor to lose economically by its enforcement. It seems to me unusual that an
unaffected third party to a contract could be allowed to question its validity. Petitioner Kilosbayan
cannot justify this officious interference on the ground of its commitment to "truth, justice and
national renewal." Such commitment to truth, justice and national renewal, however noble it may be,
cannot give Kilosbayan a roving commission to check the validity of contracts entered into by the
government and its agencies. Kilosbayan is not a private commission on audit.

Neither can I perceive how the other petitioners can be personally injured by the Contract of Lease
between PCSO and PGMC even if petitioner Salonga assails as unmitigated fraud the statistical
probability of winning the lotto as he compared it to the probability of being struck twice by lightning.
The reason is obvious: none of the petitioners will be exposed to this alleged fraud for all of them
profess to abjure playing the lotto. It is self-evident that lotto cannot physically or spiritually injure him
who does not indulge in it.

Petitioners also contend they have locus standi as taxpayers. But the case at bench does not involve
any expenditure of public money on the part of PCSO. In fact, paragraph 2 of the Contract of Lease
provides that it is PGMC that shall build, furnish, and maintain at its own expense and risk the
facilities for the On-Line Lottery System of PCSO and shall bear all maintenance and other costs.
Thus, PGMC alleged it has already spent P245M in equipment and fixtures and would be investing
close to P1 billion to supply adequately the technology and other requirements of PCSO. 11 If no tax
money is being illegally deflected in the Contract of Lease between PCSO and PGMC, petitioners
have no standing to impugn its validity as taxpayers. Our ruling in Dumlao v. Comelec, 12 settled this
issue well enough, viz:

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg.
51, and sections 4, 1, and 5 BP Blg. 52, do not directly involve the disbursement of
public funds. While, concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege that their tax
money is "being extracted and spent in violation of specific constitutional protections
against abuses of legislative power" (Flast v. Cohen, 392 U.S. 83 [1960]), or that
there is a misapplication of such funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an invalid or unconstitutional
law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]),
citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]).
Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review.
As held by this Court in Yan vs. Macapagal(43 SCRA 677 [1972]), speaking through
our present Chief Justice, this Court is vested with discretion as to whether or not a
taxpayer's suit should be entertained.

Next, petitioners plead their standing as "concerned citizens." As citizens, petitioners are pleading
that they be allowed to advocate the constitutional rights of other persons who are not before the
court and whose protection is allegedly their concern. A citizen qua citizen suit urges a greater
relaxation of the rule on locus standi. I feel no aversion to the further relaxation of the rule on
standing to accommodate what in other jurisdictions is known as an assertion of jus tertii in
constitutional litigation provided the claimant can demonstrate: (1) an injury in fact to himself, and (2)
the need to prevent the erosion of a preferred constitutional right of a third person. As stressed
before, the first requirement of injury in fact cannot be abandoned for it is an essential element for
the exercise of judicial power. Again, as stressed by Mr. Justice Powell, viz: 13
 The revolution in standing doctrine that has occurred, particularly in the 12 years
since Baker v. Carr, supra, has not meant, however, that standing barriers have
disappeared altogether. As the Court noted in Sierra Club, "broadening the
categories of injury that may be alleged in support of standing is a different matter
from abandoning the requirement that the party seeking review must himself have
suffered an injury." 405 U.S., at 738 . . . Indeed, despite the diminution of standing
requirements in the last decade, the Court has not broken with the traditional
requirement that, in the absence of a specific statutory grant of the right of review, a
plaintiff must allege some particularized injury that sets him apart from the man on
the street.

I recognize that the Court's allegiance to a requirement of particularized injury has on

occasion required a reading of the concept that threatens to transform it beyond
recognition. E.G., Baker v. Carr, supra; Flast v. Cohen, supra. But despite such
occasional digressions, the requirement remains, and I think it does so for the
reasons outlined above. In recognition of those considerations, we should refuse to
go the last mile towards abolition of standing requirements that is implicit in
broadening the "precarious opening" for federal taxpayers created by Flast, see 392
U.S., at 116 (Mr. Justice Fortas, concurring) or in allowing a citizen qua citizen to
invoke the power of the federal courts to negative unconstitutional acts of the Federal
Government.

In sum, I believe we should limit the expansion of federal taxpayer and citizen
standing in the absence of specific statutory authorization to an outer boundary
drawn by the results in Flast and Baker v. Carr. I think we should face up to the fact
that all such suits are an effort "to employ a federal court as a forum in which to air . .
. generalized grievances about the conduct of government or the allocation of power
in the Federal System." Flast v. Cohen, 392 U.S., at 106. The Court should explicitly
reaffirm traditional prudential barriers against such public actions. My reasons for this
view are rooted in respect for democratic processes and in the conviction that "[t]he
powers of the federal judiciary will be adequate for the great burdens placed upon
them only if they are employed prudently, with recognition of the strengths as well as
the hazards that go with our kind of representative government." Id., at 131

The second requirement recognizes society's right in the protection of certain preferred rights in the
Constitution even when the rightholders are not before the court. The theory is that their dilution has
a substantial fall out detriment to the rights of others, hence the latter can vindicate them.

In the case at bench, it is difficult to see how petitioners can satisfy these two requirements to
maintain a jus tertiiclaim. They claim violation of two constitutional provisions, to wit:

Section 1, Article XIII. The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.

and

Section 11, Article XII. - No franchise, certificate, or any other form of authorization
for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such citizens, nor
shall such franchise, certificate, or authorizations be exclusive in character or for a
longer period than fifty years. Neither shall any such franchise or right be granted
except under the condition that it shall be subject to amendment, alteration, or repeal
by the Congress when the common good so requires. The State shall encourage
equity participation in public utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and managing officers of such
corporation or association must be citizen of the Philippines.
Section 1, Article XIII of the Constitution cannot be the matrix of petitioners' jus tertii claim for it
expresses no more than a policy direction to the legislative in the discharge of its ordained duty to
give highest priority to the enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic, and political inequalities and remove cultural
inequities by equitably diffusing wealth and political power for the common good. Whether the act of
the legislature in amending the charter of PCSO by giving it the authority to conduct lotto and
whether the Contract of Lease entered into between PCSO and PGMC are incongruent to the policy
direction of this constitutional provision is a highly debatable proposition and can be endlessly
argued. Respondents steadfastly insist that the operation of lotto will increase the revenue base of
PCSO and enable government to provide a wider range of social services to the people. They also
allege that the operation of high-tech lotto will eradicate illegal jueteng. Petitioners are scandalized
by this submission. They dismiss gambling as evilper se and castigate government for attempting to
correct a wrong by committing another wrong. In any event, the proper forum for this debate,
however cerebrally exciting it may be, is not this court but congress. So we held in PCSO v.
Inopiquez, to wit: 14

By bringing their suit in the lower court, the private respondents in G.R. No. 79084 do
not question the power of PCSO to conduct the Instant Sweepstakes game. Rather,
they assail the wisdom of embarking upon this project because of their fear of the
"pernicious repercussions" which may be brought about by the Instant Sweepstakes
Game which they have labelled as "the worst form of gambling" which thus "affects
the moral values" of the people.

The Court, as held in several cases, does not pass upon questions of wisdom,
justice, or expediency of legislation and executive acts. It is not the province of the
courts to supervise legislation or executive orders as to keep them within the bounds
of propriety, moral values and common sense. That is primarily and even exclusively
a concern of the political departments of the government; otherwise, there will be a
violation of the principle of separation of powers. (Italics supplied)

I am not also convinced that petitioners can justify their locus standi to advocate the rights of
hypothetical third parties not before the court by invoking the need to keep inviolate section 11,
Article XII of the Constitution which imposes a nationality requirement on operators of a public utility.
For even assuming arguendo that PGMC is a public utility, still, the records do not at the moment
bear out the claim of petitioners that PGMC is a foreign owned and controlled corporation. This
factual issue remains unsettled and is still the subject of litigation by the parties in the Securities and
Exchange Commission. We are not at liberty to anticipate the verdict on this contested factual issue.
But over and above this consideration, I respectfully submit that this constitutional provision does not
confer on third parties any right of a preferred status comparable to the Bill of Rights whose dilution
will justify petitioners to vindicate them in behalf of its rightholders. The legal right of hypothetical
third parties they profess to advocate is to my mind too impersonal, too unsubstantial, too indirect,
too amorphous to justify their access to this Court and the further lowering of the constitutional
barrier of locus standi.

Again, with regret, I do not agree that the distinguished status of some of the petitioners as
lawmakers gives them the appropriate locus standi. I cannot perceive how their constitutional rights
and prerogatives as legislators can be adversely affected by the contract in question. Their right to
enact laws for the general conduct of our society remains unimpaired and undiminished. 15 Their
status as legislators, notwithstanding, they have to demonstrate that the said contract has caused
them to suffer a personal, direct, and substantial injury in fact. They cannot simply advance a
generic grievance in common with the people in general.

I am not unaware of our ruling in De Guia v. Comelec, 16 viz:

Before addressing the crux of the controversy, the Court observes that petitioner
does not allege that he is running for reelection, much less, that he is prejudiced by
the election, by district, in Paraaque. As such, he does not appear to have locus
standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC,
G.R. No. L-44640, October 12, 1976, 73 SCRA 333; Municipality of Malabang vs.
Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533). He does not also allege
any legal right that has been violated by respondent. If for this alone, petitioner does
not appear to have any cause of action.
 However, considering the importance of the issue involved, concerning as it does the
political exercise of qualified voters affected by the apportionment, and petitioner
alleging abuse of discretion and violation of the Constitution by respondent, We
resolved to brush aside the question of procedural infirmity, even as We perceive the
petition to be one of declaratory relief. We so held similarly through Mr.
Justice Edgardo L. Paras in Osmena vs. Commission on Elections.

It is my respectful submission, however, that we should re-examine de Guia. It treated the rule
on locus standi as a mere procedural rule. It is not a plain procedural rule but a constitutional
requirement derived from section 1, Article VIII of the Constitution which mandates courts of justice
to settle only "actual controversies involving rights which are legally demandable and enforceable."
The phrase has been construed since time immemorial to mean that a party in a constitutional
litigation must demonstrate a standing to sue. By downgrading the requirement on locus standi as a
procedural rule which can be discarded in the name of public interest, we are in effect amending the
Constitution by judicial fiat.

De Guia would also brush aside the rule on locus standi if a case raises an important issue. In this
regard, I join the learned observation of Mr. Justice Feliciano: "that it is not enough for the Court
simply to invoke 'public interest' or even 'paramount considerations of national interest,' and to say
that the specific requirements of such public interest can only be ascertained on a 'case to case'
basis. For one thing, such an approach is not intellectually satisfying. For another, such an answer
appears to come too close to saying that locus standi exists whenever at least a majority of the
Members of this Court participating in a case feel that an appropriate case for judicial intervention
has arisen."

I also submit that de Guia failed to perceive that the rule on locus standi has little to do with the issue
posed in a case, however, important it may be. As well pointed out in Flast v. Cohen: 17

The fundamental aspect of standing is that it focuses on the party seeking to get his
complaint before a federal court and not on the issues he wishes to have
adjudicated. The "gist of the question of standing" is whether the party seeking relief
has "alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions." Baker v.
Carr,369 U.S. 186, 204 (1962). In other words, when standing is placed in issue in a
case, the question is whether the person whose standing is challenged is a proper
party to request an adjudication of a particular issue and not whether the issue itself
is justiciable. Thus, a party may have standing in a particular case, but the federal
court may nevertheless decline to pass on the merits of the case because, for
example, it presents a political question. A proper party is demanded so that federal
courts will not be asked to decide "ill-defined controversies over constitutional
issues," United public Workers v. Mitchell, 330 U.S. 75, 90 (1947), or a case which is
of "a hypothetical or abstract character," Aetna Life Insurance Co. v. Haworth, 300
U.S. 227, 240 (1937).

It is plain to see that in de Guia, the court took an unorthodox posture, to say the least. It held there
was no proper party before it, and yet it resolved the issues posed by the petition. As there was no
proper party before the court, its decision is vulnerable to be criticized as an advisory opinion.

With due respect, the majority decision appears to have set a dangerous precedent by unduly
trivializing the rule on locus standi. By its decision, the majority has entertained a public action to
annul a private contract. In so doing, the majority may have given sixty (60) million Filipinos the
standing to assail contracts of government and its agencies. This is an invitation for chaos to visit our
law on contract, and certainly will not sit well with prospective foreign investors. Indeed, it is difficult
to tread the path of the majority on this significant issue. The majority granted locus standi to
petitioners because of lack of any other party with more direct and specific interest. But one has
standing because he has standing on his own and standing cannot be acquired because others with
standing have refused to come to court. The thesis is also floated that petitioners have standing as
they can be considered taxpayers with right to file derivative suit like a stockholder's derivative suit in
private corporations. The fact, however, is that PCSO is not a private but a quasi-public corporation.
Our law on private corporation categorically sanctions stockholder's derivative suit. In contrast, our
law on public corporation does not recognize this so-called taxpayer's derivative suit. Hence, the
idea of a taxpayer's derivative suit, while alluring, has no legal warrant.
Our brethren in the majority have also taken the unprecedented step of striking down a contrast at
the importunings of strangers thereto, but without justifying the interposition of judicial power on any
felt need to prevent violation of an important constitutional provision. The contract in question was
voided on the sole ground that it violated an ordinary statute, section 1 of R.A. 1169, as amended by
B.P. Blg. 42. If there is no provision of the Constitution that is involved in the case at bench, it
boggles the mind how the majority can invoke considerations of national interest to justify its
abandonment of the rule on locus standi. The volume of noise created by the case cannot magically
convert it to a case of paramount national importance. By its ruling, the majority has pushed the
Court in unchartered water bereft of any compass, and it may have foisted the false hope that it is
the repository of all remedies.

If I pay an unwavering reverence to the rule of locus standi, it is because I consider it as a

touchstone in maintaining the proper balance of power among the three branches of our
government. The survival of our democracy rests in a large measure on our ability to maintain this
delicate equipoise of powers. For this reason, I look at judicial review from a distinct prism. I see it
both as a power and a duty. It is a power because it enables the judiciary to check excesses of the
Executive and the Legislative. But, it is also a duty because its requirement of locus standi, among
others, Executive and the Legislative. But, it is also a duty because its requirement of locus standi,
among others, keeps the judiciary from overreaching the powers of the other branches of
government. By balancing this duality, we are able to breathe life to the principle of separation of
powers and prevent tyranny. To be sure, it is our eternal concern to prevent tyranny but that includes
tyranny by ourselves. The Constitution did not install a government by the judiciary, nay, not a
government by the unelected. In offering this submission, I reject the sublimal fear that an unyielding
insistence on the rule on locus standi will weaken the judiciary vis-a-vis the other branches of
government. The hindsight of history ought to tell us that it is not power per se that strengthens.
Power unused is preferable than power misused. We contribute to constitutionalism both by the use
of our power to decide and its non use. As well said, the cases we decide are as significant as the
cases we do not decide. Real power belongs to him who has power over power.

IN VIEW WHEREOF, and strictly on the ground of lack of locus standi on the part of petitioners, I
vote to DENY the petition.

VITUG, J., dissenting:

Judicial power encompasses both an authority and duty to resolve "actual controversies involving
rights which are legally demandable and enforceable" (Article VIII, Section 1, 1987 Constitution). As
early as the case of Lamb vs. Phipps, 1 this Court ruled: "Judicial power, in its nature, is the power to
hear and decide causes pending between parties who have the right to sue in the courts of law and
equity." 2 An essential part of, and corollary to, this principle is the locus standi of a party litigant,
referring to one who is directly affected by, and whose interest is immediate and substantial in, the
controversy. The rule requires that a party must show a personal stake in the outcome of the case or
an injury to himself that can be redressed by a favorable decision so as to warrant his invocation of
the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf. 3 If it
were otherwise, the exercise of that power can easily become too unwieldy by its sheer magnitude
and scope to a point that may, in no small degree, adversely affect its intended essentiality, stability
and consequentiality.

Locus standi, nevertheless, admits of the so-called "taxpayer's suit." Taxpayer's suits are actions or
proceedings initiated by one or more taxpayers in their own behalf or, conjunctively, in
representation of others similarly situated for the purpose of declaring illegal or unauthorized certain
acts of public officials which are claimed to be injurious to their common interests as such taxpayers
(Cf. 71 Am Jur 2d., 179-180). The principle is predicated upon the theory that taxpayers are, in
equity, the cestui que trust of tax funds, and any illegal diminution thereof by public officials
constitutes a breach of trust even as it may result in an increased burden on taxpayers (Haddock vs.
Board of Public Education, 86 A 2d 157; Henderson vs. McCormick, 17 ALR 2d 470).

Justice Brandeis of the United States Supreme Court, in his concurring opinion in Ashwander vs.
Tennessee Valley Authority (297 U.S. 288), said:

. . . . The Court will not pass upon the validity of a statute upon complaint of one who
fails to show that he is injured by its operation. Tyler v. The Judges, 179 U.S.
405; Hendrick v. Maryland, 234 U.S. 610, 621. Among the many applications of this
rule, none is more striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official interested only in
 the performance of his official duty will not be entertained. Columbus & Greenville
Ry. v. Miller, 283 U.S. 96, 99-100. In Fairchild v. Hughes, 258 U.S. 126, the Court
affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. InMassachusetts v. Mellon, 262
U.S. 447, the challenge of the federal Maternity Act was not entertained although
made by the Commonwealth on behalf of all its citizens."

Justice Brandeis' view, shared by Justice Frankfurter in Joint Anti-Fascist Refugee Commission vs.
McGrath (351 U.S. 123), was adopted by the U.S. Supreme Court in Flast vs. Cohen (392 U.S. 83)
which held that it is only when a litigant is able to show such a personal stake in the controversy as
to assure a concrete adverseness in the issues submitted that legal standing can attach.

A "taxpayer's suit," enough to confer locus standi to a party, we have held before, is understood to
be a case where the act complained of directly involves the illegal disbursement of public
funds derived from taxation.4 It is not enough that the dispute concerns public funds. A contrary rule
could easily lead to a limitless application of the term "taxpayer's suit," already by itself a broad
concept, since a questioned act of government would almost so invariably entail, as a practical
matter, a financial burden of some kind.

To be sure, serious doubts have even been raised on the propriety and feasibility of unqualifiedly
recognizing the "taxpayer's suit" as an exception from the standard rule of requiring a party who
invokes the exercise of judicial power to have a real and personal interest or a direct injury in the
outcome of a controversy. This Court has heretofore spoken on the matter, at times even venturing
beyond the usual understanding of its applicability in the name of national or public interest. It is
remarkable, nevertheless, that the accepted connotation of locus standi has still managed to be the
rule, sanctioning, by way of exception, the so-called "taxpayer's suit" which courts accept on valid
and compelling reasons.

A provision which has been introduced by the 1987 Constitution is a definition, for the first time in our
fundamental law, of the term "judicial power," as such authority and duty of courts of justice "to settle
actual controversies involving rights which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion, amounting to lack or excess of
jurisdiction, on the part of any branch or instrumentality of the Government" (Article VIII, Section 1,
Constitution). I take it that the provision has not been intended to unduly mutate, let alone to
disregard, the long established rules on locus standi. Neither has it been meant, I most respectfully
submit, to do away with the principle of separation of powers and its essential incidents such as by,
in effect, conferring omnipotence on, or allowing an intrusion by, the courts in respect to purely
political decisions, the exercise of which is explicitly vested elsewhere, and subordinate, to that of
their own, the will of either the Legislative Department or the Executive Department both co-
equal, independent and coordinate branches, along with the Judiciary, in our system of government.
Again, if it were otherwise, there indeed would be truth to the charge, in the words of some
constitutionalists, that "judicial tyranny" has been institutionalized by the 1987 Constitution, an
apprehension which should, I submit, rather be held far from truth and reality.

In sum, while any act of government, be it executive in nature or legislative in character, may be
struck down and declared a nullity either because it contravenes an express provision of the
Constitution or because it is perceived and found to be attended by or the result of grave abuse of
discretion, amounting to lack or excess of jurisdiction, that issue, however, must first be raised in a
proper judicial controversy. The Court's authority to look into and grant relief in such cases would
necessitate locus standi on the part of party litigants. This requirement, in my considered view, is not
merely procedural or technical but goes into the essence of jurisdiction and the competence of
courts to take cognizance of justiciable disputes.

In Bugnay Construction and Development Corporation vs. Laron, 5 this Court ruled:

. . . . Considering the importance to the public of a suit assailing the constitutionality

of a tax law, and in keeping with the Court's duty, specially explicated in the 1987
Constitution, to determine whether or not the other branches of the Government have
kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them, the Supreme Court may brush aside
technicalities of procedure and take cognizance of the suit. (Citing Kapatiran vs. Tan,
G.R. No. 81311, June 30, 1988.)
 However, for the above rule to apply, it is exigent that the taxpayer-plaintiff
sufficiently show that he would be benefited or injured by the judgment or entitled to
the avails of the suit as a real party in interest. (Citing Estate of George Litton vs.
Mendoza, G.R. No. 49120, June 30, 1988.) Before he can invoke the power of
judicial review, he must specifically prove that he has sufficient interest in preventing
the illegal expenditure of money raised by taxation (citing 11 Am. Jur. 761; Dumlao,
et al. vs. Commission on Elections, 95 SCRA 392) and that he will sustain a direct
injury as a result of the enforcement of the questioned statute or contract. (Citing
Sanidad, et al. vs. Commission on Elections, et al., 73 SCRA 333.) It is not sufficient
that he has merely a general interest common to all members of the public.
(Citing Ex Parte Levitt, 302 U.S. 633, cited in 15 SCRA 497, Annotation.)

As so well pointed out by Mr. Justice Camilo D. Quiason during the Court's deliberations, "due
respect and proper regard for the rule on locus standi would preclude the rendition of advisory
opinions and other forms of pronouncement on abstract issues, avoid an undue interference on
matters which are not justiciable in nature and spare the Court from getting itself involved in political
imbroglio."

The words of Senate President Edgardo J. Angara, carry wisdom; we quote:

The powers of the political branches of our government over economic policies is
rather clear: the Congress is to set in broad but definite strokes the legal framework
and structures for economic development, while the Executive provides the
implementing details for realizing the economic ends identified by Congress and
executes the same.

xxx xxx xxx

If each economic decision made by the political branches of government, particularly

by the executive, are fully open to re-examination by the judicial branch, then very
little, if any, reliance can be placed by private economic actors on those decisions.
Investors would always have to factor in possible costs arising from judicially-
determined changes affecting their immediate business, notwithstanding assurances
by executive authorities.

Judicial decisions are, in addition, inflexible and can never substitute for sound
decision-making at the level of those who are assigned to execute the laws of the
land. Since judicial power cannot be exercised unless an actual controversy is
brought before the courts for resolution, decisions cannot be properly modified
unless another appropriate controversy arises." (Sen. Edgardo J. Angara, "The
Supreme Court in Economic Policy Making," Policy Review A Quarterly Journal of
Policy Studies, Vol. 1, No. 1, January-March 1994, published by the Senate Policy
Studies Group, pp. 2-3.)

A further set-back in entertaining the petition is that it unfortunately likewise strikes at factual issues.
The allegations to the effect that irregularities have been committed in the processing and evaluation
of the bids to favor respondent PGMC; that the Malacaang Special Review Committee did not
verify warranties embodied in the contract; that the operation of telecommunication facilities is
indispensable in the operation of the lottery system; the involvement of multi-national corporations in
the operation of the on-line "hi-tech" lottery system, and the like, require the submission of evidence.
This Court is not a trier of facts, and it cannot, at this time, resolve the above issues. Just recently,
the Court has noted petitioners' manifestation of its petition with the Securities and Exchange
Commission "for the nullification of the General Information Sheets of PGMC" in respect particularly
to the nationality holdings in the corporation. The doctrine of primary jurisdiction would not justify a
disregard of the jurisdiction of, nor would it permit us to now preempt, said Commission on the
matter.

Petitioners strongly assert, in an attempt to get the Court's concurrence in accepting the petition, that
since lottery is a game of chance, the "lotto" system would itself be a "crime against morals" defined
by Articles 195-199 6 of the Revised Penal Code.

Being immoral and a criminal offense under the Revised Penal Code, petitioners contend, any
special law authorizing gambling must, by all canons of statutory constructions, be interpreted strictly
against the grantee. Citing previous decisions of this Court, they maintain that lottery is gambling,
pure and simple, 7 and that this Court has consistently condemned the immorality and illegality of
gambling to be a "national offense and not a minor transgression;" 8 "that it is a social scourge which
must be stamped out;" 9 and, "that it is pernicious to the body politic and detrimental to the nation
and its citizens."10

I most certainly will not renounce this Court's above concerns. Nevertheless, the Court must
recognize the limitations of its own authority. Courts neither legislate nor ignore legal mandates.
Republic Act No. 1169, as amended, explicitly gives public respondent

PCSO the authority and power "to hold and conduct sweepstakes races, lotteries, and other similar
activities." In addition, it is authorized:

c. To undertake any other activity that will enhance its funds generation, operations
and funds management capabilities, subject to the same limitations provided for in
the preceding paragraph.

It shall have a Board of Directors, hereinafter designated the Board, composed of

five members who shall be appointed, and whose compensation and term of office
shall be fixed, by the President.

xxx xxx xxx

Sec.9. Powers and functions of the Board of Directors. The Board of Directors of
the Office shall have the following powers and functions.

(a) To adopt or amend such rules and regulations to implement the provisions of this
Act.

xxx xxx xxx

(d) To promulgate rules and regulations for the operation of the Office and to do
such act or acts as may be necessary for the attainment of its purposes and
objectives. (Emphasis supplied).

In People vs. Dionisio, 11 cited by the petitioners themselves, we remarked: "What evils should be
corrected as pernicious to the body politic, and how correction should be done, is a matter primarily
addressed to the discretion of the legislative department, not of the courts . . . ." In Valmonte vs.
PCSO, 12 we also said:

The Court, as held in several cases, does not pass upon questions of wisdom, justice
or expediency of legislation and executive acts. It is not the province of the courts to
supervise legislation or executive orders as to keep them within the bounds of
propriety, moral values and common sense. That is primarily and even exclusively a
concern of the political departments of the government; otherwise, there will be a
violation of the principle of separation of powers.

The constraints on judicial power are clear. I feel, the Court must thus beg off, albeit not without
reluctance, from giving due course to the instant petition.

Accordingly, I vote for the dismissal of the petition.

KAPUNAN, J., dissenting:

I regret that I am unable to join my colleagues in the majority in spite of my own personal distaste for
gambling and other gaming operations. Such considerations aside, I feel there are compelling
reasons why the instant petition should be dismissed. I shall forthwith state the reasons why.

Petitioners anchor their principal objections against the contract entered into between the Philippine
Charity Sweepstakes Office (PCSO) and the PGMC on the ground that the contract entered into by
the PCSO with the PGMC violates the PCSO Charter (R.A. No. 1169 as amended by B.P. Blg 427,
specifically section 1 thereof which bars the said body from holding conducting lotteries "in
collaboration, association or joint venture with any person association, company or entity.").
However, a perusal of the petition reveals that the compelling reasons behind it, while based on
apparently legal questions involving the contract between the PCSO and the PGMC, are prompted
by the petitioners' moral objections against the whole idea of gambling operations operated by the
government through the PCSO. The whole point of the petition, in essence, is a fight between good
and evil, between the morality or amorality of lottery operations conducted on a wide scale involving
millions of individuals and affecting millions of lives. Their media of opposition are the above stated
defects in the said contract which they assail to be fatally defective. They come to this Court, as
taxpayers and civic spirted citizens, asserting a right of standing on a transcendental issue which
they assert to be of paramount public interest.

Moral or legal questions aside, I believe that there are unfortunately certain standards1 that have to
be followed in the exercise of this Court's awesome power of review before this Court could even
begin to assay the validity of the contract between the PCSO and the PGMC. This, in spite of the
apparent expansion of judicial power granted by Section 1 of Article VIII of the 1987 Constitution. It
is fundamental that such standards be complied with before this Court could even begin to explore
the substantive issues raised by any controversy brought before it, for no issue brought before this
court could possibly be so fundamental and paramount as to warrant a relaxation of the requisite
rules for judicial review developed by settled jurisprudence inorder to avoid entangling this court in
controversies which properly belong to the legislative or executive branches of our government. The
potential harm to our system of government, premised on the concept of separation of powers, by
the Court eager to exercise its powers and prerogatives at every turn, cannot be gainsaid. The
Constitution does not mandate this Court to wield the power of judicial review with excessive vigor
and alacrity in every area or at every turn, except in appropriate cases and controversies which meet
established requirements for constitutional adjudication. Article VIII Sec. 1 of the Constitution
notwithstanding, there are questions which I believe are still beyond the pale of judicial power.
Moreover, it is my considered opinion that the instant petition does not meet the requirements set by
this court for a valid exercise of judicial review.

Our Constitution expressly defines judicial power as including "the duty to settle actual cases and
controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to a lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." 2 This constitutional
requirement for an actual case and controversy limits this Court's power of review to precisely those
suits between adversary litigants with real interests at stake2 thus preventing it from making all sorts
of hypothetical pronouncements on abstract, contingent and amorphous issues. The Court will
therefore not pass upon the validity of an act of government or a statute passed by a legislative body
without a requisite showing of injury. 3 A personal stake is essential, which absence renders our
pronouncements gratuitous and certainly violative of the constitutional requirement for actual cases
and controversies.

The requirement for standing based on personal injury may of course be bypassed, as the
petitioners in this case attempt to do, by considering the case as a "taxpayer suit" which would
thereby clothe them with the personality they would lack under ordinary circumstances. However,
the act assailed by the petitioners on the whole involves the generation rather than disbursement of
public funds. In a line of cases starting from Pascual v. Secretary of Public Works 4 "taxpayer suits"
have been understood to refer only to those cases where the act or statute assailed involves the
illegal or unconstitutional disbursement of public funds derived from taxation. The main premise
behind the "taxpayer suit" is that the pecuniary interest of the taxpayer is involved whenever there is
an illegal or wasteful use of public funds which grants them the right to question the appropriation or
disbursement on the basis of their contribution to government funds. 5 Since it has not been alleged
that an illegal appropriation or disbursement of a fund derived from taxation would be made in the
instant case, I fail to see how the petitioners in this case would be able to satisfy the locus
standi requirement on the basis of a "taxpayer's suit". This alone should inhibit this Court from
proceeding with the case at bench. The interest alleged and the potential injury asserted are far too
general and hypothetical for us to rush into a judicial determination of what to me appears to be
judgment better left to executive branch of our government.

This brings me to one more important point: The idea that a norm of constitutional adjudication could
be lightly brushed aside on the mere supposition that an issue before the Court is of paramount
public concern does great harm to a democratic system which espouses a delicate balance between
three separate but co-equal branches of government. It is equally of paramount public concern,
certainly paramount to the survival of our democracy, that acts of the other branches of government
are accorded due respect by this Court. Such acts, done within their sphere of competence, have
been and should always be accorded with a presumption of regularity. When such acts are
assailed as illegal or unconstitutional, the burden falls upon those who assail these acts to prove that
they satisfy the essential norms of constitutional adjudication, because when we finally proceed to
declare an act of the executive or legislative branch of our government unconstitutional or illegal,
what we actually accomplish is the thwarting of the will of the elected representatives of the people
in the executive or legislative branches government.6 Notwithstanding Article VIII, Section 1 of the Constitution, since
the exercise of the power of judicial review by this Court is inherently antidemocratic, this Court should exercise a becoming modesty in
acting as a revisor of an act of the executive or legislative branch. The tendency of a frequent and easy resort to the function of judicial
review, particularly in areas of economic policy has become lamentably too common as to dwarf the political capacity of the people
7
expressed through their representatives in the policy making branches of government and to deaden their sense of moral responsibility.

This court has been accused, of late, of an officious tendency to delve into areas better left to the
political branches of government. 8 This tendency, if exercised by a court running riot over the other
co-equal branches of government, poses a greater danger to our democratic system than the
perceived danger real or imagined of an executive branch espousing economic or social
policies of doubtful moral worth. Moreover economic policy decisions in the current milieu- including
the act challenged in the instant case-involve complex factors requiring flexibility and a wide range of
discretion on the part of our economic managers which this Court should respect because our power
of review, under the constitution, is a power to check, not to supplant those acts or decisions of the
elected representatives of the people.

Finally, the instant petition was brought to this Court on the assumption that the issue at bench
raises primarily constitutional issues. As it has ultimately turned out, the core foundation of the
petitioners' objections to the LOTTO operations was based on the validity of the contract between
the PCSO and the PGMC in the light of Section 1 of R.A. 1169 as amended by B.P. Blg. 427. It
might have been much more appropriate for the issue to have taken its normal course in the courts
below.

I vote to deny the petition.

# Separate Opinions

CRUZ, J., concurring:

I am happy to join Mr. Justice Hilario G. Davide, Jr. in his excellent ponencia. I will add the following
personal observations only for emphasis as it is not necessary to supplement his thorough
exposition.

The respondents take great pains to cite specific provisions of the contract to show that it is PCSO
that is actually operating the on-line lottery, but they have not succeeded in disproving the obvious,
to wit, that the document was intentionally so crafted to make it appear that the operation is not a
joint undertaking of PCSO and PGMC but a mere lease of services. It is a clever instrument, to be
sure, but we are, gratifyingly, not deluded. Lawyers have a special talent to disguise the real
intention of the parties in a contract to make it come ostensibly within the provisions of a law
although the real if furtive purpose is to violate it. That talent has been exercised in this case, but not
convincingly enough.

It should be quite clear, from the adroit way the contract has been drafted, that the primary objective
was to avoid the conclusion that PCSO will be operating a lottery "in association, collaboration or
joint venture with any person, association, company or entity," which is prohibited by Section 1 of
Rep. Act No. 1169 as amended by B.P. Blg. 42. Citing the self-serving provisions of the contract, the
respondents would have us believe that the contract is perfectly lawful because all it does is provide
for the lease to PCSO of the technical know-how and equipment of PGMC, with PCSO acting as "the
sole and individual operator" of the lottery. I am glad we are not succumbing to this sophistry.

Despite the artfulness of the contract (authorship of which was pointedly denied by both counsel for
the government and the private respondent during the oral argument on this case), a careful study
will reveal telling stipulations that it is PGMC and not PCSO that will actually be operating the lottery.
Thus, it is provided inter alia that PGMC shall furnish all capital equipment and other facilities
needed for the operation; bear all expenses relating to the operation, including those for the salaries
and wages of the administrative and technical personnel; undertake a positive advertising and
promotion campaign for public support of the lottery; establish a radio communications network
throughout the country as part of the operation; and assume all risks if the revenues from ticket sales
are insufficient to pay the entire prize money. Most significantly, to show that it is only after eight
years from the effectivity of the contract that PCSO will actually operate the lottery, Par. 6.7 of the
agreement provides that PGMC shall:

6.7. Upon effectivity of this Contract, commence the training of PCSO and other local
personnel and the transfer of technology and expertise, such that at the end of the
term of this Contract, PCSO will be able to effectively take-over the Facilities and
efficiently operate the On-Line Lottery System. (Emphasis supplied).

In the meantime, that is to say during the entire 8-year term of the contract, it will be PGMC that will
be operating the lottery. Only "at the end of the term of this Contract" will PCSO "be able to
effectively take-over the Facilities and efficiently operate the On-Line Lottery System."

Even on the assumption that it is PCSO that will be operating the lottery at the very start, the
authority granted to PGMC by the agreement will readily show that PCSO will not be acting alone, as
the respondents pretend. In fact, it cannot. PGMC is an indispensable co-worker because it has the
equipment and the technology and the management skills that PCSO does not have at this time for
the operation of the lottery, PCSO cannot deny that it needs the assistance of PGMC for this
purpose, which was its reason for entering into the contract in the first place.

And when PCSO does avail itself of such assistance, how will it be operating the lottery?
Undoubtedly, it will be doing so "in collaboration, association or joint venture" with PGMC, which, let
it be added, will not be serving as a mere "hired help" of PCSO subject to its control. PGMC will be
functioning independently in the discharge of its own assigned role as stipulated in detail under the
contract. PGMC is plainly a partner of PCSO in violation of law, no matter how PGMC's assistance is
called or the contract is denominated.

Even if it be conceded that the assistance partakes of a lease of services, the undeniable fact is that
PCSO would still be collaborating or cooperating with PGMC in the operation of the lottery. What is
even worse is that PCSO and PGMC may be actually engaged in a joint venture, considering that
PGMC does not collect the usual fixed rentals due an ordinary lessor but is entitled to a special
"Rental Fee," as the contract calls it, "equal to four point nine percent (4.9%) of gross receipts from
ticket sales."

The flexibility of this amount is significant. As may be expected, it will induce in PGMC an active
interest and participation in the success of PCSO that is not expected of an ordinary detached lessor
who gets to be paid his rentals not a rental fee whether the lessee's business prospers or not.
PGMC's share in the operation depends on its own performance and the effectiveness of its
collaboration with PCSO. Although the contract pretends otherwise, PGMC is a co-investor with
PCSO in what is practically, if not in a strictly legal sense, a joint venture.

Concerning the doctrine of locus standi, I cannot agree that out of the sixty million Filipinos affected
by the proposed lottery, not a single solitary citizen can question the agreement. Locus standi is not
such an absolute rule that it cannot admit of exceptions under certain conditions or circumstances
like those attending this transaction. As I remarked in my dissent in Guazon v. De Villa, 181 SCRA
623, "It is not only the owner of the burning house who has the right to call the firemen. Every one
has the right and responsibility to prevent the fire from spreading even if he lives in the other block."

What is especially galling is that the transaction in question would foist upon our people an
essentially immoral activity through the instrumentality of a foreign corporation, which naturally does
not have the same concern for our interests as we ourselves have. I am distressed that foreigners
should be allowed to exploit the weakness of some of us for instant gain without work, and with the
active collaboration and encouragement of our own government at that.

Feliciano, J., concurring

I agree with the conclusions reached by my distinguished brother in the Court Davide, Jr., J., both in
respect of the question of locus standi and in respect of the merits of this case, that is, the issues of
legality and constitutionality of the Contract of Lease entered into between the Philippine Charity
Sweepstakes Office (PCSO) and the Philippine Gaming Management Corporation (PGMC).

In this separate opinion, I propose to address only the question of locus standi. It is with some
hesitation that I do so, considering the extensive separate opinions on this question written by my
learned brothers Melo, Puno and Vitug, JJ. I agree with the great deal of what my brothers Melo,
Puno and Vitug say about locus standi in their separate opinions and there is no need to go over the
ground that I share with them. Because, however, I reach a different conclusion in respect of the
presence or absence of locus standi on the part of the petitioners in the case before the Court, there
is an internal need (a need internal to myself) to articulate the considerations which led me to that
conclusion.

There is no dispute that the doctrine of locus standi reflects an important constitutional principle, that
is, the principle of separation of powers which, among other things, mandates that each of the great
Departments of government is responsible for performance of its constitutionally allotted tasks.
Insofar as the Judicial Department is concerned, the exercise of judicial power and carrying out of
judicial functions commonly take place within the context of actual cases or controversies. This, in
turn, reflects the basic notion of judicial power as the power to resolve actual disputes and of the
traditional business of courts as the hearing and deciding of specific controversies brought before
them. In our own jurisdiction, and at least since the turn of the present century, judicial power has
always included the power of judicial review, understood as the authority of courts (more specifically
the Supreme Court) to assay contested legislative and executive acts in terms of their
constitutionality or legality. Thus, the general proposition has been that a petitioner who assails the
legal or constitutional quality of an executive or legislative act must be able to show that he
has locus standi. Otherwise, the petition becomes vulnerable to prompt dismissal by the court.

There is, upon the other hand, little substantive dispute that the possession of locus standi 1 is not, in
each and every case, a rigid and absolute requirement for access to the courts. Certainly that is the
case where great issues of public law are at stake, issues which cannot be approached in the same
way that a court approaches a suit for the collection of a sum of money or a complaint for the
recovery of possession of a particular piece of land. The broad question is when, or in what types of
cases, the court should insist on a clear showing of locus standiunderstood as a direct and personal
interest in the subject matter of the case at bar, and when the court may or should relax that
apparently stringent requirement and proceed to deal with the legal or constitutional issues at stake
in a particular case.

I submit, with respect, that it is not enough for the Court simply to invoke "public interest" or even
"paramount considerations of national interest," and to say that the specific requirements of such
public interest can only be ascertained on a "case to case" basis. For one thing, such an approach is
not intellectually satisfying. For another, such an answer appears to come too close to saying
that locus standi exists whenever at least a majority of the Members of this Court participating in a
case feel that an appropriate case for judicial intervention has arisen.

This is not, however, to say that there is somewhere an over-arching juridical principle or theory,
waiting to be discovered, that permits a ready answer to the question of when, or in what types of
cases, the need to show locus standi may be relaxed in greater or lesser degree. To my knowledge,
no satisfactory principle or theory has been discovered and none has been crafted, whether in our
jurisdiction or in the United States. 2 I have neither the competence nor the opportunity to try to craft
such principle or formula. It might, however, be useful to attempt to indicate the considerations of
principle which, in the present case, appear to me to require an affirmative answer to the question of
whether or not petitioners are properly regarded as imbued with the standing necessary to bring and
maintain the present petition.

Firstly, the character of the funds or other assets involved in the case is of major importance. In the
case presently before the Court, the funds involved are clearly public in nature. The funds to be
generated by the proposed lottery are to be raised from the population at large. Should the proposed
operation be as successful as its proponents project, those funds will come from well-nigh every
town and barrio of Luzon. The funds here involved are public in another very real sense: they will
belong to the PCSO, a government owned or controlled corporation and an instrumentality of the
government and are destined for utilization in social development projects which, at least in principle,
are designed to benefit the general public. My learned brothers Melo, Puno and Vitug, JJ. concede
that taxpayers' suits have been recognized as an exception to the traditional requirement of
recognized as an exception to the traditional requirement of locus standi. They insist, however, that
because the funds here involved will not have been generated by the exercise of the taxing power of
the Government, the present petition cannot be regarded as a taxpayer's suit and therefore, must be
dismissed by the Court. It is my respectful submission that that constitutes much too narrow a
conception of the taxpayer's suit and of the public policy that it embodies. It is also to overlook the
fact that tax monies, strictly so called, constitute only one (1) of the major categories of funds today
raised and used for public purposes. It is widely known that the principal sources of funding for
government operations today include, not just taxes and customs duties, but also revenues derived
from activities of the Philippine Amusement Gaming Corporation (PAGCOR), as well as the
proceeds of privatization of government owned or controlled corporations and other government
owned assets. The interest of a private citizen in seeing to it that public funds, from whatever source
they may have been derived, go only to the uses directed and permitted by law is as real and
personal and substantial as the interest of a private taxpayer in seeing to it that tax monies are not
intercepted on their way to the public treasury or otherwise diverted from uses prescribed or allowed
by law. It is also pertinent to note that the more successful the government is in raising revenues by
non-traditional methods such as PAGCOR operations and privatization measures, the lesser will be
the pressure upon the traditional sources of public revenues, i.e., the pocket books of individual
taxpayers and importers.

A second factor of high relevance is the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government. A
showing that a constitutional or legal provision is patently being disregarded by the agency or
instrumentality whose act is being assailed, can scarcely be disregarded by court. The concept
of locus standi which is part and parcel of the broader notion of ripeness of the case "does not
operate independently and is not alone decisive. . . . [I]t is in substantial part a function of a judge's
estimate of the merits of the constitutional [or legal] issue." 3 The notion of locus standi and the
judge's conclusions about the merits of the case, in other words, interact with each other. Where the
Court perceives a serious issue of violation of some constitutional or statutory limitation, it will be
much less difficult for the Court to find locus standi in the petitioner and to confront the legal or
constitutional issue. In the present case, the majority of the Court considers that a very substantial
showing has been made that the Contract of Lease between the PCSO and the PGMC flies in the
face of legal limitations.

A third consideration of importance in the present case is the lack of any other party with a more
direct and specific interest in raising the questions here being raised. Though a public bidding was
held, no losing or dissatisfied bidder has come before the Court. The Office of the Ombudsman has
not, to the knowledge of the Court, raised questions about the legality or constitutionality of the
Contract of Lease here involved. The National Government itself, through the Office of the Solicitor
General, is defending the PCSO Contract (though it had not participated in the drafting thereof). In a
situation like that here obtaining, the submission may be made that the institution, so well known in
corporation law and practice, of the corporate stockholders' derivative suit furnishes an appropriate
analogy and that on the basis of such an analogy, a taxpayer's derivative suit should be recognized
as available.

The wide range of impact of the Contract of Lease here assailed and of its implementation,
constitutes still another consideration of significance. In the case at bar, the agreement if
implemented will be practically nationwide in its scope and reach (the PCSO-PGMC Contract is
limited in its application to the Island of Luzon; but if the PCSO Contracts with the other two [2]
private "gaming management" corporations in respect of the Visayas and Mindanao are substantially
similar to PCSO's Contract with PGMC, then the Contract before us may be said to be national
indeed in its implications and consequences). Necessarily, the amounts of money expected to be
raised by the proposed activities of the PCSO and PGMC will be very substantial, probably in the
hundreds of millions of pesos. It is not easy to conceive of a contract with greater and more far-
reaching consequences, literally speaking, for the country than the Contract of Lease here involved.
Thus, the subject matter of the petition is not something that the Court may casually pass over as
unimportant and as not warranting the expenditure of significant judicial resources.

In the examination of the various features of this case, the above considerations have appeared to
me to be important and as pressing for acceptance and exercise of jurisdiction on the part of this
Court. It is with these considerations in mind that I vote to grant due course to the Petition and to
hold that the Contract of Lease between the PCSO and PGMC in its present form and content, and
given the present state of the law, is fatally defective.

PADILLA, J., concurring:

My views against gambling are a matter of judicial record. In Basco v. PAGCOR, (G.R. No. 91649,
14 May 1991, 197 SCRA 52) I expressed these views in a separate opinion where I was joined by
that outstanding lady jurist, Mme. Justice A. Melencio-Herrera whose incisive approach to legal
problems is today missed in this Court. I reproduce here those views because they are highly
persuasive to the conclusions I reach in the present controversy:
 I concur in the result of the learned decision penned by my brother Mr. Justice Paras.
This means that I agree with the decision insofar as it holds that the prohibition,
control, and regulation of the entire activity known as gambling properly pertain to
"state policy." It is, therefore, the political departments of government, namely, the
legislative and the executive that should decide on what government should do in the
entire area of gambling, and assume full responsibility to the people for such policy.

The courts, as the decision states, cannot inquire into the wisdom, morality or
expediency of policies adopted by the political departments of government in areas
which fall within their authority, except only when such policies pose a clear and
present danger to the life, liberty or property of the individual. This case does not
involve such a factual situation.

However, I hasten to make of record that I do not subscribe to gambling in any form.
It demeans the human personality, destroys self-confidence and eviscerates one's
self-respect, which in the long run will corrode whatever is left of the Filipino moral
character. Gambling has wrecked and will continue to wreck families and homes; it is
an antithesis to individual reliance and reliability as well as personal industry which
are the touchstones of real economic progress and national development.

Gambling is reprehensible whether maintained by government or privatized. The

revenues realized by the government out of "legalized" gambling will, in the long run,
be more than offset and negated by the irreparable damage to the people's moral
values.

Also, the moral standing of the government in its repeated avowals against "illegal
gambling" is fatally flawed and becomes untenable when it itself engages in the very
activity it seeks to eradicate.

One can go through the Court's decision today and mentally replace the activity
referred to therein as gambling, which is legal only because it is authorized by law
and run by the government, with the activity known as prostitution. Would prostitution
be any less reprehensible were it to be authorized by law, franchised, and
"regulated" by the government, in return for the substantial revenues it would yield
the government to carry out its laudable projects, such as infrastructure and social
amelioration? The question, I believe, answers itself. I submit that the sooner the
legislative department outlaws all forms of gambling, as a fundamental state policy,
and the sooner the executive implements such policy, the better it will be for the
nation.

We presently have the sweepstakes lotteries; we already have the PAGCOR's gambling casinos; the
Filipino people will soon, if plans do not miscarry, be initiated into an even more sophisticated and
encompassing nationwide gambling network known as the "on-line hi-tech lotto system." To be sure,
it is not wealth producing; it is not export oriented. It will draw from existing wealth in the hands of
Filipinos and transfer it into the coffers of the PCSO and its foreign partners at a price of further
debasement of the moral standards of the Filipino people, the bulk of whom are barely subsisting
below the poverty line.

1. It is said that petitioners 1 have no locus standi to bring this suit even as they
challenge the legality and constitutionality of a contract of lease between the PCSO,
a government-owned corporation and the PGMC, a private corporation with
substantial (if not controlling) foreign composition and content. Such contract of lease
contains the terms and conditions under which an "on-line hi-tech lotto system" will
operate in the country.

As the ponente of the extended, unsigned en banc resolution in Valmonte v. PCSO, (G.R. No. 78716
and G.R. No. 79084, 22 September 1987), I would be the last to downgrade the rule, therein
reiterated, that in order to maintain a suit challenging the constitutionality and/or legality of a statute,
order or regulation or assailing a particular governmental action as done with grave abuse of
discretion or with lack of jurisdiction, the petitioner must show that he has a clear personal or legal
right that would be violated with the enforcement of the challenged statute, order or regulation or the
implementation of the questioned governmental action. But, in my considered view, this rule maybe
(and should be) relaxed when the issue involved or raised in the petition is of such paramount
national interest and importance as to dwarf the above procedural rule into a barren technicality. As
a unanimous Court en banc aptly put it in De Guia vs. COMELEC, G.R. No. 104712, 6 May 1992,
208 SCRA 420.

Before addressing the crux of the controversy, the Court observes that petitioner
does not allege that he is running for re-election, much less, that he is prejudiced by
the election, by district, in Paraaque. As such, he does not appear to have locus
standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC,
G.R. No. L-4640, October 12, 1976. 73 SCRA 333; Municipality of Malabang vs.
Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533) He does not also allege
any legal right that has been violated by respondent. If for this alone, petitioner does
not appear to have any cause of action.

However, considering the importance of the issue involved, concerning as it does the
political exercise of qualified voters affected by the apportionment, and petitioner
alleging abuse of discretion and violation of the Constitution by respondent, We
resolved to brush aside the question of procedural infirmity, even as We perceive the
petition to be one of declaratory relief. We so held similarly through Mr. Justice
Edgardo L. Paras in Osmea vs. Commission on Elections.

I view the present case as falling within the De Guia case doctrine. For, when the contract of lease in
question seeks to establish and operate a nationwide gambling network with substantial if not
controlling foreign participation, then the issue is of paramount national interest and importance as to
justify and warrant a relaxation of the above-mentioned procedural rule on locus standi.

2. The charter of the PCSO Republic Act No. 1169 as amended by BP No. 42
insofar as relevant, reads:

Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity

Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs, medical
assistance and services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered One Thousand
Four Hundred Fifty-Nine, as amended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries and other similar
activities, in such frequency and manner, as shall be determined, and subject to such
rules and regulations as shall be promulgated by the Board of Directors.

B. Subject to the approval of the Minister of Human Settlements, to engage in health

and welfare-related investments, programs, projects and activities which may be
profit-oriented, by itself or in collaboration, association or joint venture with any
person, association, company or entity, whether domestic or foreign, except for the
activities mentioned in the preceding paragraph (A), for the purpose of providing for
permanent and continuing sources of funds for health programs, including the
expansion of existing ones, medical assistance and services, and/or charitable
grants: Provided, That such investments will not compete with the private sector in
areas where investments are adequate as may be determined by the National
Economic and Development Authority.

It is at once clear from the foregoing legal provisions that, while the PCSO charter allows the PCSO
to itself engage in lotteries, it does not however permit the PCSO to undertake or engage in lotteries
in "collaboration, association or joint venture" with others. The palpable reason for this prohibition is,
that PCSO should not and cannot be made a vehicle for an otherwise prohibited foreign or domestic
entity to engage in lotteries (gambling activities) in the Philippines.

The core question then is whether the lease contract between PCSO and PGMC is a device
whereby PCSO will engage in lottery in collaboration, association or joint venture with another, i.e.
PGMC. I need not go here into the details and different specific features of the contract to show that
it is a joint venture between PCSO and PGMC. That has been taken care of in the opinion of Mr.
Justice Davide to which I fully subscribe.

On a slightly different plane and, perhaps simplified, I consider the agreement or arrangement
between the PCSO and PGMC a joint venture because each party to the contract contributes its
share in the enterprise or project. PGMC contributes its facilities, equipment and know-how
(expertise). PCSO contributes (aside from its charter) the market, directly or through dealers and
this to me is most important in the totality or mass of the Filipinogambling elements who will invest
in lotto tickets. PGMC will get its 4.9% of gross receipts (with assumption of certain risks in the
course of lotto operations); the residue of the whole exercise will go to PCSO. To any person with a
minimum of business know-how, this is a joint venture between PCSO and PGMC, plain and simple.

But assuming ex gratia argumenti that such arrangement between PCSO and PGMC is not a joint
venture between the two of them to install and operate an "on-line hi-tech lotto system" in the
country, it can hardly be denied that it is, at the very least, an association or collaboration between
PCSO and PGMC. For one cannot do without the other in the installation, operation and, most
importantly, marketing of the entire enterprise or project in this country.

Indeed, the contract of lease in question is a clear violation of Republic Act No. 1169 as amended by
BP No. 42 (the PCSO charter).

Having arrived at the conclusion that the contract of lease in question between the PCSO and
PGMC is illegal and, therefore, invalid, I find it unnecessary to dwell on the other issues raised in the
pleadings and arguments of the parties.

I, therefore, vote to give DUE COURSE to the petition and to declare the contract of lease in
question between PCSO and PGMC, for the reasons aforestated, of no force and effect.

MELO, J., dissenting:

I submit that the petition before the Court deserves no less than outright dismissal for the reason that
petitioners, as concerned citizens and as taxpayers and as members of Congress, do not possess
the necessary legal standing to assail the validity of the contract of lease entered into by the
Philippine Charity Sweepstakes Office and the Philippine Gaming Management Corporation relative
to the establishment and operation of an "On-line Hi-Tech Lottery System" in the country.

As announced in Lamb vs. Phipps (22 Phil. [1912], 559), "[J]udicial power in its nature, is the power
to hear and decide causes pending between parties who have the right to sue and be sued in the
courts of law and equity." Necessarily, this implies that a party must show a personal stake in the
outcome of the controversy or an injury to himself that can be addressed by a favorable decision so
as to warrant his invocation of the court's jurisdiction and to justify the court's remedial powers in his
behalf (Warth vs. Seldin, 422 U.S. 490; Guzman vs. Marrero, 180 U.S. 81; McMicken vs. United
States, 97 U.S. 204). Here, we have yet to see any of petitioners acquiring a personal stake in the
outcome of the controversy or being placed in a situation whereby injury may be sustained if the
contract of lease in question is implemented. It may be that the contract has somehow evoked public
interest which petitioners claim to represent. But the alleged public interest which they pretend to
represent is not only broad and encompassing but also strikingly and veritably indeterminate that
one cannot truly say whether a handful of the public, like herein petitioners, may lay a valid claim of
representation in behalf of the millions of citizens spread all over the land who may have just as
many varied reactions relative to the contract in question.

Any effort to infuse personality on petitioners by considering the present case as a "taxpayer's suit"
could not cure the lack of locus standi on the part of petitioners. As understood in this jurisdiction, a
"taxpayer's suit" refers to a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation (Pascual vs. Secretary of Public Works, 110 Phil.
[1960] 331; Maceda vs. Macaraig, 197 SCRA [1991]; Lozada vs. COMELEC, 120 SCRA [1983] 337;
Dumlao vs. COMELEC, 95 SCRA [1980] 392; Gonzales vs. Marcos, 65 SCRA [1975] 624). It cannot
be overstressed that no public fund raised by taxation is involved in this case. In fact, it is even
doubtful if the rentals which the PCSO will pay to the lessor for its operation of the lottery system
may be regarded as "public fund". The PCSO is not a revenue- collecting arm of the government.
Income or money realized by it from its operations will not and need not be turned over to the
National Treasury. Rather, this will constitute corporate funds which will remain with the corporation
to finance its various activities as authorized in its charter. And if ever some semblance of "public
character" may be said to attach to its earnings, it is simply because PCSO is a government-owned
or controlled entity and not a purely private enterprise.

It must be conceded though that a "taxpayer's suit" had been allowed in a number of instances in
this jurisdiction. For sure, after the trial was blazed by Pascual vs. Secretary of Public Works, supra,
several more followed. It is to be noted, however, that in those occasions where this Court allowed
such a suit, the case invariably involved either the constitutionality of a statute or the legality of the
disbursement of public funds through the enforcement of what was perceived to be an invalid or
unconstitutional statute or legislation (Pascual, supra; Philippine Constitution Association, Inc. vs.
Jimenez, 15 SCRA [1965] 479; Philippine Constitution Association, Inc. vs. Mathay, 18 SCRA [1966]
300; Tolentino vs. COMELEC, 41 SCRA [1971] 702; Pelaez vs. Auditor General, 15 SCRA [1965]
569; Iloilo Palay and Corn Planters Association vs. Feliciano, 13 SCRA [1965] 377).

The case before us is not a challenge to the validity of a statute or an attempt to restrain expenditure
of public funds pursuant to an alleged invalid congressional enactment. What petitioners ask us to
do is to nullify a simple contract of lease entered into by a government-owned corporation with a
private entity. That contract, as earlier pointed out, does not involve the disbursement of public funds
but of strictly corporate money. If every taxpayer, claiming to have interest in the contract, no matter
how remote, could come to this Court and seek nullification of said contract, the day may come
when the activities of government corporate entities will ground to a standstill on account of nuisance
suits filed against them by persons whose supposed interest in the contract is as remote and as
obscure as the interest of any man in the street. The dangers attendant thereto are not hard to
discern and this Court must not allow them to come to pass.

One final observation must be emphasized. When the petition at bench was filed, the Court decided
to hear the case on oral argument on the initial perception that a constitutional issue could be
involved. However, it now appears that no question of constitutional dimension is at stake as indeed
the majority barely touches on such an issue, concentrating as it does on its interpretation of the
contract between the Philippine Charity Sweepstakes Office and the Philippine Gaming
Management Corporation.

I, therefore, vote to dismiss the petition.

PUNO, J., dissenting:

At the outset, let me state that my religious faith and family upbringing compel me to regard
gambling, regardless of its garb, with hostile eyes. Such antagonism tempts me to view the case at
bench as a struggle between good and evil, a fight between the forces of light against the forces of
darkness. I will not, however, yield to that temptation for we are not judges of the Old Testament
type who were not only arbiters of law but were also high priests of morality.

I will therefore strictly confine the peregrinations of my mind to the legal issues for resolution: (1)
whether or not the petitioners have the Locus standi to file the petition at bench; and (2) assuming
their locus standi, whether or not the Contract of Lease between PCSO and PGMC is null and void
considering: (a) section 1 of R.A. No. 1169, as amended by B.P. Blg. 42 (Charter of PCSO) which
prohibits PCSO from holding and conducting lotteries "in collaboration, association or joint venture
with any person, association, company or entity"; (b) Act No. 3836 which requires a congressional
franchise before any person or entity can establish and operate a telecommunication system; (c)
section 11, Art. XII of the Constitution, which requires that for a corporation to operate a public utility,
at least 60% of its capital must be owned by Filipino citizens; and (d) R.A. No. 7042, otherwise
known as the "Foreign Investments Act", which includes all forms of gambling in its "negative list."

While the legal issues abound, I deferentially submit that the threshold issue is the locus standi, or
standing to sue, of petitioners. The petition describes petitioner Kilosbayan, Inc., as a non-stock
corporation composed of "civic spirited citizens, pastors, priests, nuns, and lay leaders who are
committed to the cause of truth, justice, and national renewal." 1 Petitioners Jovito R. Salonga, Cirilo
A. Rigos, Ernie Camba, Emilio C. Capulong, Jr., Jose Abcede, Christine Tan, Felipe L. Gozon,
Rafael G. Fernando, Raoul V. Victorino, Jose Cunanan, and Quintin S. Doromal joined the petition in
their capacity as trustees of Kilosbayan, Inc., and as taxpayers and concerned citizens. 2 Petitioners
Freddie Webb and Wigberto Taada joined the petition as senators, taxpayers and concerned
citizens. 3 Petitioner Joker P. Arroyo joined the petition as a member of the House of Representative,
a taxpayer and a concerned citizen. 4

With due respect to the majority opinion, I wish to focus on the interstices of locus standi, a concept
described by Prof. Paul Freund as "among the most amorphous in the entire domain of public law."
The requirement of standing to sue inheres from the definition of judicial power. It is not merely a
technical rule of procedure which we are at liberty to disregard. Section 1, Article VIII of the
Constitution provides:

xxx xxx xxx

 Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Italics supplied)

The phrase "actual controversies involving rights which are legally demandable and enforceable"
has acquired a cultivated meaning given by courts. It spells out the requirements that must be
satisfied before one can come to court to litigate a constitutional issue. Our distinguished colleague,
Mr. Justice Isagani A. Cruz, gives a shorthand summary of these requirements when he states that
no constitutional question will be heard and decided by courts unless there is a showing of the
following: . . . (1) there must be an actual case or controversy; (2) the question of constitutionality
must be raised by the proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision of the constitutional question must be necessary to the
determination of the case itself. 5

The complexion of the rule on locus standi has been undergoing a change. Mr. Justice Cruz has
observed the continuing relaxation of the rule on
standing, 6 thus:

xxx xxx xxx

A proper party is one who has sustained or is in immediate danger of sustaining an

injury as a result of the act complained of. Until and unless such actual or potential
injury is established, the complainant cannot have the legal personality to raise the
constitutional question.

In Tileson v. Ullmann, a physician questioned the constitutionality of a law prohibiting

the use of contraceptives, upon the ground that it might prove dangerous to the life or
health of some of his patients whose physical condition would not enable them to
bear the rigors of childbirth. The court dismissed the challenge, holding that the
patients of the physician and not the physician himself were the proper parties.

In Cuyegkeng v. Cruz, the petitioner challenged in a quo warranto proceeding the

title of the respondent who, he claimed, had been appointed to the board of medical
examiners in violation of the provisions of the Medical Act of 1959. The Supreme
Court dismissed the petition, holding that Cuyegkeng had not made a claim to the
position held by Cruz and therefore could not be regarded as a proper party who had
sustained an injury as a result of the questioned act.

In People v. Vera, it was held that the Government of the Philippines was a proper
party to challenge the constitutionality of the Probation Act because, more than any
other, it was the government itself that should be concerned over the validity of its
own laws.

In Ex Parte Levitt, the petitioner, an American taxpayer and member of the bar, filed
a motion for leave to question the qualifications of Justice Black who, he averred,
had been appointed to the U.S. Supreme Court in violation of the Constitution of the
United States. The Court dismissed the petition, holding that Levitt was not a proper
party since he was not claiming the position held by Justice Black.

The rule before was that an ordinary taxpayer did not have the proper party
personality to question the legality of an appropriation law since his interest in the
sum appropriated was not substantial enough. Thus, in Custodio v. Senate
President, a challenge by an ordinary taxpayer to the validity of a law granting back
pay to government officials, including members of Congress, during the period
corresponding to the Japanese Occupation was dismissed as having been
commenced by one who was not a proper party.

Since the first Emergency Powers Cases, however, the rule has been changed and it
is now permissible for an ordinary taxpayer, or a group of taxpayers, to raise the
question of the validity of an appropriation law. As the Supreme Court then put it.
"The transcendental importance to the public of these cases demands that they be
 settled promptly and definitely, brushing aside, if we must, technicalities of
procedure."

In Tolentino v. Commission on Elections, it was held that a senator had the proper
party personality to seek the prohibition of a plebiscite for the ratification of a
proposed constitutional amendment. In PHILCONSA v. Jimenez, an organization of
taxpayers and citizens was held to be a proper party to question the constitutionality
of a law providing for special retirement benefits for members of the legislature.

In Sanidad v. Commission on Elections, the Supreme Court upheld the petitioners as

proper parties, thus

As a preliminary resolution, We rule that the petitioners in L-44640

(Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to
challenge the constitutional premise of Presidential Decree Nos. 991,
1031, and 1033. It is now an ancient rule that the valid source of a
statute Presidential Decrees are of such nature may be
contested by one who will sustain a direct injury as a result of its
enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that
the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a
misapplication of such funds. The breadth of Presidential Decree No.
991 carries an appropriation of Five Million Pesos for the effective
implementation of its purposes. Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions.
The interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money sufficiently clothes
them with that personality to litigate the validity of the Decrees
appropriating said funds. Moreover, as regard taxpayer's suits, this
Court enjoys that open discretion to entertain the same or not. For the
present case, We deem it sound to exercise that discretion
affirmatively so that the authority upon which the disputed Decrees
are predicated may be inquired into.

In Lozada v. Commission on Elections, however, the petitioners were held without

legal standing to demand the filling of vacancies in the legislature because they had
only "a generalized interest' shared with the rest of the citizenry."

Last July 30, 1993, we further relaxed the rule on standing in Oposa, et al. v. Hon. Fulgencio S.
Factoran, Jr., 7where we recognized the locus standi of minors representing themselves as well as
generations unborn to protect their constitutional right to a balanced and healthful ecology.

I am perfectly at peace with the drift of our decisions liberalizing the rule on locus standi. The once
stubborn disinclination to decide constitutional issues due to lack of locus standi is incompatible with
the expansion of judicial power mandated in section 1 of Article VIII of the Constitution, i.e., "to
determine whether or not there has been a grave abuse of discretion, amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." As we held thru the
ground breaking ponencia of Mr. Justice Cruz in Daza v. Singson, 8 this provision no longer
precludes the Court from resolving political questions in proper cases. But even perusing this
provision as a constitutional warrant for the court to enter the once forbidden political thicket, it is
clear that the requirement of locus standi has not been jettisoned by the Constitution for it still
commands courts in no uncertain terms to settle only "actual controversies involving rights which are
legally demandable and enforceable." Stated otherwise, courts are neither free to decide all kinds of
cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a
grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is
intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to
warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of
government." 9 It thus goes to the very essence of representative democracies. As Mr. Justice Powell
carefully explained in U.S. v.
Richardson, 10 viz:

Relaxation of standing requirements is directly related to the expansion of judicial

power. It seems to me inescapable that allowing unrestricted taxpayer or citizen
 standing would significantly alter the allocation of power at the national level, with a
shift away from a democratic form of government. I also believe that repeated and
essentially head-on confrontations between the life-tenured branch and the
representative branches of government will not, in the long run, be beneficial to
either. The public confidence essential to the former and the vitality critical to the
latter may well erode if we do not exercise self- restraint in the utilization of our power
to negative the actions of the other branches. We should be ever mindful of the
contradictions that would arise if a democracy were to permit at large oversight of the
elected branches of government by a non-representative, and in large measure
insulated, judicial branch. Moreover, the argument that the Court should allow
unrestricted taxpayer or citizen standing underestimates the ability of the
representative branches of the Federal Government to respond to the citizen
pressure that has been responsible in large measure for the current drift toward
expanded standing. Indeed, taxpayer or citizen advocacy, given its potentially broad
base, is precisely the type of leverage that in a democracy ought to be employed
against the branches that were intended to be responsive to public attitudes about
the appropriate operation of government. "We must as judges recall that, as Mr.
Justice Holmes wisely observed, the other branches of Government are ultimate
guardians of the liberties and welfare of the people in quite as great a degree as the
courts."

Unrestrained standing in federal taxpayer or citizen suits would create a remarkably

illogical system of judicial supervision of the coordinate branches of the Federal
Government. Randolph's proposed Council of Revision, which was repeatedly
rejected by the Framers, at least had the virtue of being systematic; every law
passed by the legislature automatically would have been previewed by the judiciary
before the law could take effect. On the other hand, since the judiciary cannot select
the taxpayers or citizens who bring suit or the nature of the suits, the allowance of
public actions would produce uneven and sporadic review, the quality of which would
be influenced by the resources and skill of the particular plaintiff. And issues would
be presented in abstract form, contrary to the Court's recognition that "judicial review
is effective largely because it is not available simply at the behest of a partisan
faction, but is exercised only to remedy a particular, concrete injury." Sierra Club v.
Morton, 405 U.S. 727, 740-741, n. 16 (1972).

A lesser but not insignificant reason for screening the standing of persons who desire to litigate
constitutional issues is economic in character. Given the sparseness of our resources, the capacity
of courts to render efficient judicial service to our people is severely limited. For courts to
indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden
their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is
an evil that clearly confronts our judiciary today.

Prescinding from these premises, and with great reluctance, I am not prepared to concede the
standing to sue of petitioners. On a personal level, they have not shown that elemental injury in fact
which will endow them with a standing to sue. It must be stressed that petitioners are in the main,
seeking the nullity not of a law but of a Contract of Lease. Not one of the petitioners is a party to the
Contract of Lease executed between PCSO and PGMC. None of the petitioners participated in the
bidding, and hence they are not losing bidders. They are complete strangers to the contract. They
stand neither to gain nor to lose economically by its enforcement. It seems to me unusual that an
unaffected third party to a contract could be allowed to question its validity. Petitioner Kilosbayan
cannot justify this officious interference on the ground of its commitment to "truth, justice and
national renewal." Such commitment to truth, justice and national renewal, however noble it may be,
cannot give Kilosbayan a roving commission to check the validity of contracts entered into by the
government and its agencies. Kilosbayan is not a private commission on audit.

Neither can I perceive how the other petitioners can be personally injured by the Contract of Lease
between PCSO and PGMC even if petitioner Salonga assails as unmitigated fraud the statistical
probability of winning the lotto as he compared it to the probability of being struck twice by lightning.
The reason is obvious: none of the petitioners will be exposed to this alleged fraud for all of them
profess to abjure playing the lotto. It is self-evident that lotto cannot physically or spiritually injure him
who does not indulge in it.

Petitioners also contend they have locus standi as taxpayers. But the case at bench does not involve
any expenditure of public money on the part of PCSO. In fact, paragraph 2 of the Contract of Lease
provides that it is PGMC that shall build, furnish, and maintain at its own expense and risk the
facilities for the On-Line Lottery System of PCSO and shall bear all maintenance and other costs.
Thus, PGMC alleged it has already spent P245M in equipment and fixtures and would be investing
close to P1 billion to supply adequately the technology and other requirements of PCSO. 11 If no tax
money is being illegally deflected in the Contract of Lease between PCSO and PGMC, petitioners
have no standing to impugn its validity as taxpayers. Our ruling in Dumlao v. Comelec, 12 settled this
issue well enough, viz:

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg.
51, and sections 4, 1, and 5 BP Blg. 52, do not directly involve the disbursement of
public funds. While, concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege that their tax
money is "being extracted and spent in violation of specific constitutional protections
against abuses of legislative power" (Flast v. Cohen, 392 U.S. 83 [1960]), or that
there is a misapplication of such funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an invalid or unconstitutional
law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]),
citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]).
Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review.
As held by this Court in Yan vs. Macapagal(43 SCRA 677 [1972]), speaking through
our present Chief Justice, this Court is vested with discretion as to whether or not a
taxpayer's suit should be entertained.

Next, petitioners plead their standing as "concerned citizens." As citizens, petitioners are pleading
that they be allowed to advocate the constitutional rights of other persons who are not before the
court and whose protection is allegedly their concern. A citizen qua citizen suit urges a greater
relaxation of the rule on locus standi. I feel no aversion to the further relaxation of the rule on
standing to accommodate what in other jurisdictions is known as an assertion of jus tertii in
constitutional litigation provided the claimant can demonstrate: (1) an injury in fact to himself, and (2)
the need to prevent the erosion of a preferred constitutional right of a third person. As stressed
before, the first requirement of injury in fact cannot be abandoned for it is an essential element for
the exercise of judicial power. Again, as stressed by Mr. Justice Powell, viz: 13

The revolution in standing doctrine that has occurred, particularly in the 12 years
since Baker v. Carr, supra, has not meant, however, that standing barriers have
disappeared altogether. As the Court noted in Sierra Club, "broadening the
categories of injury that may be alleged in support of standing is a different matter
from abandoning the requirement that the party seeking review must himself have
suffered an injury." 405 U.S., at 738 . . . Indeed, despite the diminution of standing
requirements in the last decade, the Court has not broken with the traditional
requirement that, in the absence of a specific statutory grant of the right of review, a
plaintiff must allege some particularized injury that sets him apart from the man on
the street.

I recognize that the Court's allegiance to a requirement of particularized injury has on

occasion required a reading of the concept that threatens to transform it beyond
recognition. E.G., Baker v. Carr, supra; Flast v. Cohen, supra. But despite such
occasional digressions, the requirement remains, and I think it does so for the
reasons outlined above. In recognition of those considerations, we should refuse to
go the last mile towards abolition of standing requirements that is implicit in
broadening the "precarious opening" for federal taxpayers created by Flast, see 392
U.S., at 116 (Mr. Justice Fortas, concurring) or in allowing a citizen qua citizen to
invoke the power of the federal courts to negative unconstitutional acts of the Federal
Government.

In sum, I believe we should limit the expansion of federal taxpayer and citizen
standing in the absence of specific statutory authorization to an outer boundary
drawn by the results in Flast and Baker v. Carr. I think we should face up to the fact
that all such suits are an effort "to employ a federal court as a forum in which to air . .
. generalized grievances about the conduct of government or the allocation of power
in the Federal System." Flast v. Cohen, 392 U.S., at 106. The Court should explicitly
reaffirm traditional prudential barriers against such public actions. My reasons for this
 view are rooted in respect for democratic processes and in the conviction that "[t]he
powers of the federal judiciary will be adequate for the great burdens placed upon
them only if they are employed prudently, with recognition of the strengths as well as
the hazards that go with our kind of representative government." Id., at 131

The second requirement recognizes society's right in the protection of certain preferred rights in the
Constitution even when the rightholders are not before the court. The theory is that their dilution has
a substantial fall out detriment to the rights of others, hence the latter can vindicate them.

In the case at bench, it is difficult to see how petitioners can satisfy these two requirements to
maintain a jus tertiiclaim. They claim violation of two constitutional provisions, to wit:

Section 1, Article XIII. The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.

and

Section 11, Article XII. - No franchise, certificate, or any other form of authorization
for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such citizens, nor
shall such franchise, certificate, or authorizations be exclusive in character or for a
longer period than fifty years. Neither shall any such franchise or right be granted
except under the condition that it shall be subject to amendment, alteration, or repeal
by the Congress when the common good so requires. The State shall encourage
equity participation in public utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and managing officers of such
corporation or association must be citizen of the Philippines.

Section 1, Article XIII of the Constitution cannot be the matrix of petitioners' jus tertii claim for it
expresses no more than a policy direction to the legislative in the discharge of its ordained duty to
give highest priority to the enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic, and political inequalities and remove cultural
inequities by equitably diffusing wealth and political power for the common good. Whether the act of
the legislature in amending the charter of PCSO by giving it the authority to conduct lotto and
whether the Contract of Lease entered into between PCSO and PGMC are incongruent to the policy
direction of this constitutional provision is a highly debatable proposition and can be endlessly
argued. Respondents steadfastly insist that the operation of lotto will increase the revenue base of
PCSO and enable government to provide a wider range of social services to the people. They also
allege that the operation of high-tech lotto will eradicate illegal jueteng. Petitioners are scandalized
by this submission. They dismiss gambling as evilper se and castigate government for attempting to
correct a wrong by committing another wrong. In any event, the proper forum for this debate,
however cerebrally exciting it may be, is not this court but congress. So we held in PCSO v.
Inopiquez, to wit: 14

By bringing their suit in the lower court, the private respondents in G.R. No. 79084 do
not question the power of PCSO to conduct the Instant Sweepstakes game. Rather,
they assail the wisdom of embarking upon this project because of their fear of the
"pernicious repercussions" which may be brought about by the Instant Sweepstakes
Game which they have labelled as "the worst form of gambling" which thus "affects
the moral values" of the people.

The Court, as held in several cases, does not pass upon questions of wisdom,
justice, or expediency of legislation and executive acts. It is not the province of the
courts to supervise legislation or executive orders as to keep them within the bounds
of propriety, moral values and common sense. That is primarily and even exclusively
a concern of the political departments of the government; otherwise, there will be a
violation of the principle of separation of powers. (Italics supplied)
I am not also convinced that petitioners can justify their locus standi to advocate the rights of
hypothetical third parties not before the court by invoking the need to keep inviolate section 11,
Article XII of the Constitution which imposes a nationality requirement on operators of a public utility.
For even assuming arguendo that PGMC is a public utility, still, the records do not at the moment
bear out the claim of petitioners that PGMC is a foreign owned and controlled corporation. This
factual issue remains unsettled and is still the subject of litigation by the parties in the Securities and
Exchange Commission. We are not at liberty to anticipate the verdict on this contested factual issue.
But over and above this consideration, I respectfully submit that this constitutional provision does not
confer on third parties any right of a preferred status comparable to the Bill of Rights whose dilution
will justify petitioners to vindicate them in behalf of its rightholders. The legal right of hypothetical
third parties they profess to advocate is to my mind too impersonal, too unsubstantial, too indirect,
too amorphous to justify their access to this Court and the further lowering of the constitutional
barrier of locus standi.

Again, with regret, I do not agree that the distinguished status of some of the petitioners as
lawmakers gives them the appropriate locus standi. I cannot perceive how their constitutional rights
and prerogatives as legislators can be adversely affected by the contract in question. Their right to
enact laws for the general conduct of our society remains unimpaired and undiminished. 15 Their
status as legislators, notwithstanding, they have to demonstrate that the said contract has caused
them to suffer a personal, direct, and substantial injury in fact. They cannot simply advance a
generic grievance in common with the people in general.

I am not unaware of our ruling in De Guia v. Comelec, 16 viz:

Before addressing the crux of the controversy, the Court observes that petitioner
does not allege that he is running for reelection, much less, that he is prejudiced by
the election, by district, in Paraaque. As such, he does not appear to have locus
standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC,
G.R. No. L-44640, October 12, 1976, 73 SCRA 333; Municipality of Malabang vs.
Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533). He does not also allege
any legal right that has been violated by respondent. If for this alone, petitioner does
not appear to have any cause of action.

However, considering the importance of the issue involved, concerning as it does the
political exercise of qualified voters affected by the apportionment, and petitioner
alleging abuse of discretion and violation of the Constitution by respondent, We
resolved to brush aside the question of procedural infirmity, even as We perceive the
petition to be one of declaratory relief. We so held similarly through Mr.
Justice Edgardo L. Paras in Osmena vs. Commission on Elections.

It is my respectful submission, however, that we should re-examine de Guia. It treated the rule
on locus standi as a mere procedural rule. It is not a plain procedural rule but a constitutional
requirement derived from section 1, Article VIII of the Constitution which mandates courts of justice
to settle only "actual controversies involving rights which are legally demandable and enforceable."
The phrase has been construed since time immemorial to mean that a party in a constitutional
litigation must demonstrate a standing to sue. By downgrading the requirement on locus standi as a
procedural rule which can be discarded in the name of public interest, we are in effect amending the
Constitution by judicial fiat.

De Guia would also brush aside the rule on locus standi if a case raises an important issue. In this
regard, I join the learned observation of Mr. Justice Feliciano: "that it is not enough for the Court
simply to invoke 'public interest' or even 'paramount considerations of national interest,' and to say
that the specific requirements of such public interest can only be ascertained on a 'case to case'
basis. For one thing, such an approach is not intellectually satisfying. For another, such an answer
appears to come too close to saying that locus standi exists whenever at least a majority of the
Members of this Court participating in a case feel that an appropriate case for judicial intervention
has arisen."

I also submit that de Guia failed to perceive that the rule on locus standi has little to do with the issue
posed in a case, however, important it may be. As well pointed out in Flast v. Cohen: 17

The fundamental aspect of standing is that it focuses on the party seeking to get his
complaint before a federal court and not on the issues he wishes to have
adjudicated. The "gist of the question of standing" is whether the party seeking relief
 has "alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions." Baker v.
Carr,369 U.S. 186, 204 (1962). In other words, when standing is placed in issue in a
case, the question is whether the person whose standing is challenged is a proper
party to request an adjudication of a particular issue and not whether the issue itself
is justiciable. Thus, a party may have standing in a particular case, but the federal
court may nevertheless decline to pass on the merits of the case because, for
example, it presents a political question. A proper party is demanded so that federal
courts will not be asked to decide "ill-defined controversies over constitutional
issues," United public Workers v. Mitchell, 330 U.S. 75, 90 (1947), or a case which is
of "a hypothetical or abstract character," Aetna Life Insurance Co. v. Haworth, 300
U.S. 227, 240 (1937).

It is plain to see that in de Guia, the court took an unorthodox posture, to say the least. It held there
was no proper party before it, and yet it resolved the issues posed by the petition. As there was no
proper party before the court, its decision is vulnerable to be criticized as an advisory opinion.

With due respect, the majority decision appears to have set a dangerous precedent by unduly
trivializing the rule on locus standi. By its decision, the majority has entertained a public action to
annul a private contract. In so doing, the majority may have given sixty (60) million Filipinos the
standing to assail contracts of government and its agencies. This is an invitation for chaos to visit our
law on contract, and certainly will not sit well with prospective foreign investors. Indeed, it is difficult
to tread the path of the majority on this significant issue. The majority granted locus standi to
petitioners because of lack of any other party with more direct and specific interest. But one has
standing because he has standing on his own and standing cannot be acquired because others with
standing have refused to come to court. The thesis is also floated that petitioners have standing as
they can be considered taxpayers with right to file derivative suit like a stockholder's derivative suit in
private corporations. The fact, however, is that PCSO is not a private but a quasi-public corporation.
Our law on private corporation categorically sanctions stockholder's derivative suit. In contrast, our
law on public corporation does not recognize this so-called taxpayer's derivative suit. Hence, the
idea of a taxpayer's derivative suit, while alluring, has no legal warrant.

Our brethren in the majority have also taken the unprecedented step of striking down a contrast at
the importunings of strangers thereto, but without justifying the interposition of judicial power on any
felt need to prevent violation of an important constitutional provision. The contract in question was
voided on the sole ground that it violated an ordinary statute, section 1 of R.A. 1169, as amended by
B.P. Blg. 42. If there is no provision of the Constitution that is involved in the case at bench, it
boggles the mind how the majority can invoke considerations of national interest to justify its
abandonment of the rule on locus standi. The volume of noise created by the case cannot magically
convert it to a case of paramount national importance. By its ruling, the majority has pushed the
Court in unchartered water bereft of any compass, and it may have foisted the false hope that it is
the repository of all remedies.

If I pay an unwavering reverence to the rule of locus standi, it is because I consider it as a

touchstone in maintaining the proper balance of power among the three branches of our
government. The survival of our democracy rests in a large measure on our ability to maintain this
delicate equipoise of powers. For this reason, I look at judicial review from a distinct prism. I see it
both as a power and a duty. It is a power because it enables the judiciary to check excesses of the
Executive and the Legislative. But, it is also a duty because its requirement of locus standi, among
others, Executive and the Legislative. But, it is also a duty because its requirement of locus standi,
among others, keeps the judiciary from overreaching the powers of the other branches of
government. By balancing this duality, we are able to breathe life to the principle of separation of
powers and prevent tyranny. To be sure, it is our eternal concern to prevent tyranny but that includes
tyranny by ourselves. The Constitution did not install a government by the judiciary, nay, not a
government by the unelected. In offering this submission, I reject the sublimal fear that an unyielding
insistence on the rule on locus standi will weaken the judiciary vis-a-vis the other branches of
government. The hindsight of history ought to tell us that it is not power per se that strengthens.
Power unused is preferable than power misused. We contribute to constitutionalism both by the use
of our power to decide and its non use. As well said, the cases we decide are as significant as the
cases we do not decide. Real power belongs to him who has power over power.

IN VIEW WHEREOF, and strictly on the ground of lack of locus standi on the part of petitioners, I
vote to DENY the petition.
VITUG, J., dissenting:

Judicial power encompasses both an authority and duty to resolve "actual controversies involving
rights which are legally demandable and enforceable" (Article VIII, Section 1, 1987 Constitution). As
early as the case of Lamb vs. Phipps, 1 this Court ruled: "Judicial power, in its nature, is the power to
hear and decide causes pending between parties who have the right to sue in the courts of law and
equity." 2 An essential part of, and corollary to, this principle is the locus standi of a party litigant,
referring to one who is directly affected by, and whose interest is immediate and substantial in, the
controversy. The rule requires that a party must show a personal stake in the outcome of the case or
an injury to himself that can be redressed by a favorable decision so as to warrant his invocation of
the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf. 3 If it
were otherwise, the exercise of that power can easily become too unwieldy by its sheer magnitude
and scope to a point that may, in no small degree, adversely affect its intended essentiality, stability
and consequentiality.

Locus standi, nevertheless, admits of the so-called "taxpayer's suit." Taxpayer's suits are actions or
proceedings initiated by one or more taxpayers in their own behalf or, conjunctively, in
representation of others similarly situated for the purpose of declaring illegal or unauthorized certain
acts of public officials which are claimed to be injurious to their common interests as such taxpayers
(Cf. 71 Am Jur 2d., 179-180). The principle is predicated upon the theory that taxpayers are, in
equity, the cestui que trust of tax funds, and any illegal diminution thereof by public officials
constitutes a breach of trust even as it may result in an increased burden on taxpayers (Haddock vs.
Board of Public Education, 86 A 2d 157; Henderson vs. McCormick, 17 ALR 2d 470).

Justice Brandeis of the United States Supreme Court, in his concurring opinion in Ashwander vs.
Tennessee Valley Authority (297 U.S. 288), said:

. . . . The Court will not pass upon the validity of a statute upon complaint of one who
fails to show that he is injured by its operation. Tyler v. The Judges, 179 U.S.
405; Hendrick v. Maryland, 234 U.S. 610, 621. Among the many applications of this
rule, none is more striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official interested only in
the performance of his official duty will not be entertained. Columbus & Greenville
Ry. v. Miller, 283 U.S. 96, 99-100. In Fairchild v. Hughes, 258 U.S. 126, the Court
affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. InMassachusetts v. Mellon, 262
U.S. 447, the challenge of the federal Maternity Act was not entertained although
made by the Commonwealth on behalf of all its citizens."

Justice Brandeis' view, shared by Justice Frankfurter in Joint Anti-Fascist Refugee Commission vs.
McGrath (351 U.S. 123), was adopted by the U.S. Supreme Court in Flast vs. Cohen (392 U.S. 83)
which held that it is only when a litigant is able to show such a personal stake in the controversy as
to assure a concrete adverseness in the issues submitted that legal standing can attach.

A "taxpayer's suit," enough to confer locus standi to a party, we have held before, is understood to
be a case where the act complained of directly involves the illegal disbursement of public
funds derived from taxation.4 It is not enough that the dispute concerns public funds. A contrary rule
could easily lead to a limitless application of the term "taxpayer's suit," already by itself a broad
concept, since a questioned act of government would almost so invariably entail, as a practical
matter, a financial burden of some kind.

To be sure, serious doubts have even been raised on the propriety and feasibility of unqualifiedly
recognizing the "taxpayer's suit" as an exception from the standard rule of requiring a party who
invokes the exercise of judicial power to have a real and personal interest or a direct injury in the
outcome of a controversy. This Court has heretofore spoken on the matter, at times even venturing
beyond the usual understanding of its applicability in the name of national or public interest. It is
remarkable, nevertheless, that the accepted connotation of locus standi has still managed to be the
rule, sanctioning, by way of exception, the so-called "taxpayer's suit" which courts accept on valid
and compelling reasons.

A provision which has been introduced by the 1987 Constitution is a definition, for the first time in our
fundamental law, of the term "judicial power," as such authority and duty of courts of justice "to settle
actual controversies involving rights which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion, amounting to lack or excess of
jurisdiction, on the part of any branch or instrumentality of the Government" (Article VIII, Section 1,
Constitution). I take it that the provision has not been intended to unduly mutate, let alone to
disregard, the long established rules on locus standi. Neither has it been meant, I most respectfully
submit, to do away with the principle of separation of powers and its essential incidents such as by,
in effect, conferring omnipotence on, or allowing an intrusion by, the courts in respect to purely
political decisions, the exercise of which is explicitly vested elsewhere, and subordinate, to that of
their own, the will of either the Legislative Department or the Executive Department both co-
equal, independent and coordinate branches, along with the Judiciary, in our system of government.
Again, if it were otherwise, there indeed would be truth to the charge, in the words of some
constitutionalists, that "judicial tyranny" has been institutionalized by the 1987 Constitution, an
apprehension which should, I submit, rather be held far from truth and reality.

In sum, while any act of government, be it executive in nature or legislative in character, may be
struck down and declared a nullity either because it contravenes an express provision of the
Constitution or because it is perceived and found to be attended by or the result of grave abuse of
discretion, amounting to lack or excess of jurisdiction, that issue, however, must first be raised in a
proper judicial controversy. The Court's authority to look into and grant relief in such cases would
necessitate locus standi on the part of party litigants. This requirement, in my considered view, is not
merely procedural or technical but goes into the essence of jurisdiction and the competence of
courts to take cognizance of justiciable disputes.

In Bugnay Construction and Development Corporation vs. Laron, 5 this Court ruled:

. . . . Considering the importance to the public of a suit assailing the constitutionality

of a tax law, and in keeping with the Court's duty, specially explicated in the 1987
Constitution, to determine whether or not the other branches of the Government have
kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them, the Supreme Court may brush aside
technicalities of procedure and take cognizance of the suit. (Citing Kapatiran vs. Tan,
G.R. No. 81311, June 30, 1988.)

However, for the above rule to apply, it is exigent that the taxpayer-plaintiff
sufficiently show that he would be benefited or injured by the judgment or entitled to
the avails of the suit as a real party in interest. (Citing Estate of George Litton vs.
Mendoza, G.R. No. 49120, June 30, 1988.) Before he can invoke the power of
judicial review, he must specifically prove that he has sufficient interest in preventing
the illegal expenditure of money raised by taxation (citing 11 Am. Jur. 761; Dumlao,
et al. vs. Commission on Elections, 95 SCRA 392) and that he will sustain a direct
injury as a result of the enforcement of the questioned statute or contract. (Citing
Sanidad, et al. vs. Commission on Elections, et al., 73 SCRA 333.) It is not sufficient
that he has merely a general interest common to all members of the public.
(Citing Ex Parte Levitt, 302 U.S. 633, cited in 15 SCRA 497, Annotation.)

As so well pointed out by Mr. Justice Camilo D. Quiason during the Court's deliberations, "due
respect and proper regard for the rule on locus standi would preclude the rendition of advisory
opinions and other forms of pronouncement on abstract issues, avoid an undue interference on
matters which are not justiciable in nature and spare the Court from getting itself involved in political
imbroglio."

The words of Senate President Edgardo J. Angara, carry wisdom; we quote:

The powers of the political branches of our government over economic policies is
rather clear: the Congress is to set in broad but definite strokes the legal framework
and structures for economic development, while the Executive provides the
implementing details for realizing the economic ends identified by Congress and
executes the same.

xxx xxx xxx

If each economic decision made by the political branches of government, particularly

by the executive, are fully open to re-examination by the judicial branch, then very
little, if any, reliance can be placed by private economic actors on those decisions.
Investors would always have to factor in possible costs arising from judicially-
 determined changes affecting their immediate business, notwithstanding assurances
by executive authorities.

Judicial decisions are, in addition, inflexible and can never substitute for sound
decision-making at the level of those who are assigned to execute the laws of the
land. Since judicial power cannot be exercised unless an actual controversy is
brought before the courts for resolution, decisions cannot be properly modified
unless another appropriate controversy arises." (Sen. Edgardo J. Angara, "The
Supreme Court in Economic Policy Making," Policy Review A Quarterly Journal of
Policy Studies, Vol. 1, No. 1, January-March 1994, published by the Senate Policy
Studies Group, pp. 2-3.)

A further set-back in entertaining the petition is that it unfortunately likewise strikes at factual issues.
The allegations to the effect that irregularities have been committed in the processing and evaluation
of the bids to favor respondent PGMC; that the Malacaang Special Review Committee did not
verify warranties embodied in the contract; that the operation of telecommunication facilities is
indispensable in the operation of the lottery system; the involvement of multi-national corporations in
the operation of the on-line "hi-tech" lottery system, and the like, require the submission of evidence.
This Court is not a trier of facts, and it cannot, at this time, resolve the above issues. Just recently,
the Court has noted petitioners' manifestation of its petition with the Securities and Exchange
Commission "for the nullification of the General Information Sheets of PGMC" in respect particularly
to the nationality holdings in the corporation. The doctrine of primary jurisdiction would not justify a
disregard of the jurisdiction of, nor would it permit us to now preempt, said Commission on the
matter.

Petitioners strongly assert, in an attempt to get the Court's concurrence in accepting the petition, that
since lottery is a game of chance, the "lotto" system would itself be a "crime against morals" defined
by Articles 195-199 6 of the Revised Penal Code.

Being immoral and a criminal offense under the Revised Penal Code, petitioners contend, any
special law authorizing gambling must, by all canons of statutory constructions, be interpreted strictly
against the grantee. Citing previous decisions of this Court, they maintain that lottery is gambling,
pure and simple, 7 and that this Court has consistently condemned the immorality and illegality of
gambling to be a "national offense and not a minor transgression;" 8 "that it is a social scourge which
must be stamped out;" 9 and, "that it is pernicious to the body politic and detrimental to the nation
and its citizens."10

I most certainly will not renounce this Court's above concerns. Nevertheless, the Court must
recognize the limitations of its own authority. Courts neither legislate nor ignore legal mandates.
Republic Act No. 1169, as amended, explicitly gives public respondent

PCSO the authority and power "to hold and conduct sweepstakes races, lotteries, and other similar
activities." In addition, it is authorized:

c. To undertake any other activity that will enhance its funds generation, operations
and funds management capabilities, subject to the same limitations provided for in
the preceding paragraph.

It shall have a Board of Directors, hereinafter designated the Board, composed of

five members who shall be appointed, and whose compensation and term of office
shall be fixed, by the President.

xxx xxx xxx

Sec.9. Powers and functions of the Board of Directors. The Board of Directors of
the Office shall have the following powers and functions.

(a) To adopt or amend such rules and regulations to implement the provisions of this
Act.

xxx xxx xxx

 (d) To promulgate rules and regulations for the operation of the Office and to do
such act or acts as may be necessary for the attainment of its purposes and
objectives. (Emphasis supplied).

In People vs. Dionisio, 11 cited by the petitioners themselves, we remarked: "What evils should be
corrected as pernicious to the body politic, and how correction should be done, is a matter primarily
addressed to the discretion of the legislative department, not of the courts . . . ." In Valmonte vs.
PCSO, 12 we also said:

The Court, as held in several cases, does not pass upon questions of wisdom, justice
or expediency of legislation and executive acts. It is not the province of the courts to
supervise legislation or executive orders as to keep them within the bounds of
propriety, moral values and common sense. That is primarily and even exclusively a
concern of the political departments of the government; otherwise, there will be a
violation of the principle of separation of powers.

The constraints on judicial power are clear. I feel, the Court must thus beg off, albeit not without
reluctance, from giving due course to the instant petition.

Accordingly, I vote for the dismissal of the petition.

KAPUNAN, J., dissenting:

I regret that I am unable to join my colleagues in the majority in spite of my own personal distaste for
gambling and other gaming operations. Such considerations aside, I feel there are compelling
reasons why the instant petition should be dismissed. I shall forthwith state the reasons why.

Petitioners anchor their principal objections against the contract entered into between the Philippine
Charity Sweepstakes Office (PCSO) and the PGMC on the ground that the contract entered into by
the PCSO with the PGMC violates the PCSO Charter (R.A. No. 1169 as amended by B.P. Blg 427,
specifically section 1 thereof which bars the said body from holding conducting lotteries "in
collaboration, association or joint venture with any person association, company or entity.").
However, a perusal of the petition reveals that the compelling reasons behind it, while based on
apparently legal questions involving the contract between the PCSO and the PGMC, are prompted
by the petitioners' moral objections against the whole idea of gambling operations operated by the
government through the PCSO. The whole point of the petition, in essence, is a fight between good
and evil, between the morality or amorality of lottery operations conducted on a wide scale involving
millions of individuals and affecting millions of lives. Their media of opposition are the above stated
defects in the said contract which they assail to be fatally defective. They come to this Court, as
taxpayers and civic spirted citizens, asserting a right of standing on a transcendental issue which
they assert to be of paramount public interest.

Moral or legal questions aside, I believe that there are unfortunately certain standards1 that have to
be followed in the exercise of this Court's awesome power of review before this Court could even
begin to assay the validity of the contract between the PCSO and the PGMC. This, in spite of the
apparent expansion of judicial power granted by Section 1 of Article VIII of the 1987 Constitution. It
is fundamental that such standards be complied with before this Court could even begin to explore
the substantive issues raised by any controversy brought before it, for no issue brought before this
court could possibly be so fundamental and paramount as to warrant a relaxation of the requisite
rules for judicial review developed by settled jurisprudence inorder to avoid entangling this court in
controversies which properly belong to the legislative or executive branches of our government. The
potential harm to our system of government, premised on the concept of separation of powers, by
the Court eager to exercise its powers and prerogatives at every turn, cannot be gainsaid. The
Constitution does not mandate this Court to wield the power of judicial review with excessive vigor
and alacrity in every area or at every turn, except in appropriate cases and controversies which meet
established requirements for constitutional adjudication. Article VIII Sec. 1 of the Constitution
notwithstanding, there are questions which I believe are still beyond the pale of judicial power.
Moreover, it is my considered opinion that the instant petition does not meet the requirements set by
this court for a valid exercise of judicial review.

Our Constitution expressly defines judicial power as including "the duty to settle actual cases and
controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to a lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." 2 This constitutional
requirement for an actual case and controversy limits this Court's power of review to precisely those
suits between adversary litigants with real interests at stake2 thus preventing it from making all sorts
of hypothetical pronouncements on abstract, contingent and amorphous issues. The Court will
therefore not pass upon the validity of an act of government or a statute passed by a legislative body
without a requisite showing of injury. 3 A personal stake is essential, which absence renders our
pronouncements gratuitous and certainly violative of the constitutional requirement for actual cases
and controversies.

The requirement for standing based on personal injury may of course be bypassed, as the
petitioners in this case attempt to do, by considering the case as a "taxpayer suit" which would
thereby clothe them with the personality they would lack under ordinary circumstances. However,
the act assailed by the petitioners on the whole involves the generation rather than disbursement of
public funds. In a line of cases starting from Pascual v. Secretary of Public Works 4 "taxpayer suits"
have been understood to refer only to those cases where the act or statute assailed involves the
illegal or unconstitutional disbursement of public funds derived from taxation. The main premise
behind the "taxpayer suit" is that the pecuniary interest of the taxpayer is involved whenever there is
an illegal or wasteful use of public funds which grants them the right to question the appropriation or
disbursement on the basis of their contribution to government funds. 5 Since it has not been alleged
that an illegal appropriation or disbursement of a fund derived from taxation would be made in the
instant case, I fail to see how the petitioners in this case would be able to satisfy the locus
standi requirement on the basis of a "taxpayer's suit". This alone should inhibit this Court from
proceeding with the case at bench. The interest alleged and the potential injury asserted are far too
general and hypothetical for us to rush into a judicial determination of what to me appears to be
judgment better left to executive branch of our government.

This brings me to one more important point: The idea that a norm of constitutional adjudication could
be lightly brushed aside on the mere supposition that an issue before the Court is of paramount
public concern does great harm to a democratic system which espouses a delicate balance between
three separate but co-equal branches of government. It is equally of paramount public concern,
certainly paramount to the survival of our democracy, that acts of the other branches of government
are accorded due respect by this Court. Such acts, done within their sphere of competence, have
been and should always be accorded with a presumption of regularity. When such acts are
assailed as illegal or unconstitutional, the burden falls upon those who assail these acts to prove that
they satisfy the essential norms of constitutional adjudication, because when we finally proceed to
declare an act of the executive or legislative branch of our government unconstitutional or illegal,
what we actually accomplish is the thwarting of the will of the elected representatives of the people
in the executive or legislative branches government.6 Notwithstanding Article VIII, Section 1 of the Constitution, since
the exercise of the power of judicial review by this Court is inherently antidemocratic, this Court should exercise a becoming modesty in
acting as a revisor of an act of the executive or legislative branch. The tendency of a frequent and easy resort to the function of judicial
review, particularly in areas of economic policy has become lamentably too common as to dwarf the political capacity of the people
expressed through their representatives in the policy making branches of government and to deaden their sense of moral responsibility. 7

This court has been accused, of late, of an officious tendency to delve into areas better left to the
political branches of government. 8 This tendency, if exercised by a court running riot over the other
co-equal branches of government, poses a greater danger to our democratic system than the
perceived danger real or imagined of an executive branch espousing economic or social
policies of doubtful moral worth. Moreover economic policy decisions in the current milieu- including
the act challenged in the instant case-involve complex factors requiring flexibility and a wide range of
discretion on the part of our economic managers which this Court should respect because our power
of review, under the constitution, is a power to check, not to supplant those acts or decisions of the
elected representatives of the people.

Finally, the instant petition was brought to this Court on the assumption that the issue at bench
raises primarily constitutional issues. As it has ultimately turned out, the core foundation of the
petitioners' objections to the LOTTO operations was based on the validity of the contract between
the PCSO and the PGMC in the light of Section 1 of R.A. 1169 as amended by B.P. Blg. 427. It
might have been much more appropriate for the issue to have taken its normal course in the courts
below.

I vote to deny the petition.

G.R. No. L-34150 October 16, 1971

ARTURO M. TOLENTINO, petitioner,

vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA,
and JUAN V. BORRA, Intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional
Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the
1971 Constitutional Convention.

Intervenors in their own behalf.

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines
to eighteen years "shall be, submitted" for ratification by the people pursuant to Organic Resolution
No. 1 of the Constitutional Convention of 1971, and the subsequent implementing resolutions, by
declaring said resolutions to be without the force and effect of law in so far as they direct the holding
of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC)
performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and
void, for being violative of the Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Count
required that copies thereof be served on the Solicitor General and the Constitutional Convention,
through its President, for such action as they may deem proper to take. In due time, respondent
COMELEC filed its answer joining issues with petitioner. To further put things in proper order, and
considering that the fiscal officers of the Convention are indispensable parties in a proceeding of this
nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by law for
the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of
the Convention be made respondents. After the petition was so amended, the first appeared thru
Senator Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents,
thru counsel, resist petitioner's action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that with the principal parties being duly represented by able counsel,
their interests would be adequately protected already, the Court had to limit the number of
intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest
in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera,
Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all
interests involved should be duly and amply represented and protected. At any rate, notwithstanding
that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have been
denied, the pleadings filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the result of this case with the
records and the Court acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into being
by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a
constituent assembly convened for the purpose of calling a convention to propose amendments to
the Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16,
1967 and June 17, 1969 respectively. The delegates to the said Convention were all elected under
and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The
pertinent portions of Resolution No 2 read as follows:

SECTION 1. There is hereby called a convention to propose amendments to the

Constitution of the Philippines, to be composed of two elective Delegates from each
representative district who shall have the same qualifications as those required of
Members of the House of Representatives.

xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be valid and

considered part of the Constitution when approved by a majority of the votes cast in
an election at which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.

Resolution No. 4 merely modified the number of delegates to represent the different cities and
provinces fixed originally in Resolution No 2.

After the election of the delegates held on November 10, 1970, the Convention held its inaugural
session on June 1, 1971. Its preliminary labors of election of officers, organization of committees and
other preparatory works over, as its first formal proposal to amend the Constitution, its session which
began on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28,
1971, the Convention approved Organic Resolution No. 1 reading thus: .

CC ORGANIC RESOLUTION NO. 1

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE

CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO
18

BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:

Section 1. Section One of Article V of the Constitution of the Philippines is amended

to as follows:

Section 1. Suffrage may be exercised by (male) citizens of the

Philippines not otherwise disqualified by law, who are (twenty-one)
EIGHTEEN years or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months
preceding the election.

Section 2. This amendment shall be valid as part of the Constitution of the

Philippines when approved by a majority of the votes cast in a plebiscite to coincide
with the local elections in November 1971.

Section 3. This partial amendment, which refers only to the age qualification for the
exercise of suffrage shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions of the
amended Section or on other portions of the entire Constitution.

Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from
its savings or from its unexpended funds for the expense of the advanced plebiscite;
provided, however that should there be no savings or unexpended sums, the
Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem.

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent
Comelec "to help the Convention implement (the above) resolution." The said letter reads:

September 28, 1971

 The Commission on Elections Manila

Thru the Chairman

Gentlemen:

Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as
the Constitutional Convention Act of 1971, may we call upon you to help the
Convention implement this resolution:

Sincerely,

(Sgd.) DIOSDADO P.
MACAPAGAL
DIOSDADO P.
MACAPAGAL
President

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will
hold the plebiscite on condition that:

(a) The Constitutional Convention will undertake the printing of separate official
ballots, election returns and tally sheets for the use of said plebiscite at its expense;

(b) The Constitutional Convention will adopt its own security measures for the
printing and shipment of said ballots and election forms; and

(c) Said official ballots and election forms will be delivered to the Commission in time
so that they could be distributed at the same time that the Commission will distribute
its official and sample ballots to be used in the elections on November 8, 1971.

What happened afterwards may best be stated by quoting from intervenors' Governors' statement of
the genesis of the above proposal:

The President of the Convention also issued an order forming an Ad Hoc Committee
to implement the Resolution.

This Committee issued implementing guidelines which were approved by the

President who then transmitted them to the Commission on Elections.

The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies
of the order, resolution and letters of transmittal above referred to (Copy of the report
is hereto attached as Annex 8-Memorandum).

RECESS RESOLUTION

In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a
recess of the Convention from November 1, 1971 to November 9, 1971 to permit the
delegates to campaign for the ratification of Organic Resolution No. 1. (Copies of the
resolution and the transcript of debate thereon are hereto attached as Annexes 9 and
9-A Memorandum, respectively).

RESOLUTION CONFIRMING IMPLEMENTATION

 On October 12, 1971, the Convention passed Resolution No. 24 submitted by
Delegate Jose Ozamiz confirming the authority of the President of the Convention to
implement Organic Resolution No. 1, including the creation of the Ad Hoc Committee
ratifying all acts performed in connection with said implementation.

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and effect
as laws in so far as they provide for the holding of a plebiscite co-incident with the elections of eight
senators and all city, provincial and municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is,
by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the people for ratification separately from each and
all of the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down the details
of the plebiscite for the ratification of any amendment the Convention may deem proper to propose
is within the authority of the Convention as a necessary consequence and part of its power to
propose amendments and that this power includes that of submitting such amendments either
individually or jointly at such time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is really in accord with the letter and
spirit of the Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being legislative
body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the
control of the Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor
of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that
the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in the
case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved, were precisely unanimous in
upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact
of the portions of Our decision they have quoted or would misapply them by taking them out of
context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter,
those of a constitutional convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very
case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that
point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .

As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court
speaking through one of the leading members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P. Laurel declared that "the
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution which was being submitted to the people for ratification
satisfied the three-fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief Accountant of the
Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Taada v.
Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-
18684, Sept. 14, 1961). In the first we held that the officers and employees of the
Senate Electoral Tribunal are under its supervision and control, not of that of the
Senate President, as claimed by the latter; in the second, this Court proceeded to
determine the number of Senators necessary for quorum in the Senate; in the third,
 we nullified the election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act, on behalf of the party having the
second largest number of votes therein of two (2) Senators belonging to the first
party, as members, for the second party, of the Senate Electoral Tribunal; and in the
fourth, we declared unconstitutional an act of Congress purporting to apportion the
representatives districts for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political questions the determination of
which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is

not included in the general grant of legislative powers to Congress (Section 1, Art. VI,
Constitution of the Philippines). It is part of the inherent powers of the people as
the repository sovereignty in a republican state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely
because the same explicitly grants such power. (Section 1, Art. XV, Constitution of
the Philippines) Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike the people, when
performing the same function, (Of amending the Constitution) for their authority
does not emanate from the Constitution they are the very source of all powers of
government including the Constitution itself.

Since, when proposing, as a constituent assembly, amendments to the Constitution,

the members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within
or beyond constitutional limits. Otherwise, they could brush aside and set the same
at naught, contrary to the basic tenet that ours is a government of laws, not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress acting as a constituent

assembly violates the Constitution is essentially justiciable not political, and,
hence, subject to judicial review, and, to the extent that this view may be inconsistent
with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.

No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same nature, owes its existence
and derives all its authority and power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation
from a mother country or of a revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is
completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current convention came into being only
because it was called by a resolution of a joint session of Congress acting as a constituent assembly
by authority of Section 1, Article XV of the present Constitution which provides:

ARTICLE XV AMENDMENTS

SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of

all the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention for the
purpose. Such amendments shall be valid as part of this Constitution when approved
 by a majority of the votes cast at an election at which the amendments are submitted
to the people for their ratification.

True it is that once convened, this Convention became endowed with extra ordinary powers
generally beyond the control of any department of the existing government, but the compass of such
powers can be co-extensive only with the purpose for which the convention was called and as it may
propose cannot have any effect as part of the Constitution until the same are duly ratified by the
people, it necessarily follows that the acts of convention, its officers and members are not immune
from attack on constitutional grounds. The present Constitution is in full force and effect in its entirety
and in everyone of its parts the existence of the Convention notwithstanding, and operates even
within the walls of that assembly. While it is indubitable that in its internal operation and the
performance of its task to propose amendments to the Constitution it is not subject to any degree of
restraint or control by any other authority than itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can rightfully deprive any person of life, liberty or
property without due process of law, deny to anyone in this country the equal protection of the laws
or the freedom of speech and of the press in disregard of the Bill of Rights of the existing
Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the
taking of private property without just compensation or for the imposition or exacting of any tax,
impost or assessment, or declare war or call the Congress to a special session, suspend the
privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy between
private individuals or between such individuals and the state, in violation of the distribution of powers
in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly assert,
much less exercise, in the light of the existing Constitution, the simple question arises, should an act
of the Convention be assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a contention is correct or not? It
is of the very essence of the rule of law that somehow somewhere the Power and duty to resolve
such a grave constitutional question must be lodged on some authority, or we would have to confess
that the integrated system of government established by our founding fathers contains a wide
vacuum no intelligent man could ignore, which is naturally unworthy of their learning, experience and
craftsmanship in constitution-making.

We need not go far in search for the answer to the query We have posed. The very decision of Chief
Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the
irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel
in Angara vs. Electoral Commission, 63 Phil., 134, reading:

... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say where the one
leaves off and the other begins. In times of social disquietude or political excitement,
the great landmark of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.

As any human production our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of check and balances
and subject to specific limitations and restrictions provided in the said instrument.
The Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment and the principles of good government mere political
apothegms. Certainly the limitations and restrictions embodied in our Constitution are
real as they should be in any living Constitution. In the United States where no
express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period of more than one
and half centuries. In our case, this moderating power is granted, if not expressly, by
clear implication from section 2 of Article VIII of our Constitution.

The Constitution is a definition of the powers or government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates
to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to strike
conclusions unrelated to actualities. Narrowed as its functions is in this manner the
judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.

But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty ... the
people who are authors of this blessing must also be its guardians ... their eyes must
be ever ready to mark, their voices to pronounce ... aggression on the authority of
their Constitution." In the last and ultimate analysis then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds
and hearts than in consultation rooms and court chambers.

In the case at bar, the National Assembly has by resolution (No. 8) of December 3,
1935, confirmed the election of the herein petitioner to the said body. On the other
hand, the Electoral Commission has by resolution adopted on December 9, 1935,
fixed said date as the last day for the filing of protests against the election, returns
and qualifications of members of the National Assembly; notwithstanding the
previous confirmations made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of
cutting off the power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National Assembly, submitted
after December 3, 1935 then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if, as contended by
the respondents, the Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the resolution of
December 9, 1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of members of
the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave

constitutional nature between the National Assembly on the one hand and the
Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of our
own, upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The Electoral
Commission as we shall have occasion to refer hereafter, is a constitutional organ,
created for a specific purpose, namely, to determine all contests relating to the
election, returns and qualifications of the members of the National Assembly.
Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of
 the constitutional mechanism adopted by the people and that it is not subject to
constitutional restriction. The Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of authority under the
fundamental law between departmental powers and agencies of the government are
necessarily determined by the judiciary in justiciable and appropriate cases.
Discarding the English type and other European types of constitutional government,
the framers of our Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some
countries which have declined to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition, courts are bound to assume what
is logically their function. For instance, the Constitution of Poland of 1921 expressly
provides that courts shall have no power to examine the validity of statutes (art. 81,
Chap. IV). The former Austrian Constitution contained a similar declaration. In
countries whose constitution are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the
Czechoslavak, Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial constitutional courts are established to
pass upon the validity of ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would not a void be thus created
in our constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so
must we avoid exhaustion in our constitutional system. Upon principle, reason, and
authority, we are clearly of the opinion that upon the admitted facts of the present
case, this court has jurisdiction over the Electoral Commission and the subject matter
of the present controversy for the purpose of determining the character, scope and
extent of the constitutional grant to the Electoral Commission as "the sole judge of all
contests relating to the election, returns and qualifications of the members of the
National Assembly." .

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing regular
departments of the government but to all such conflicts between and among these departments, or,
between any of them, on the one hand, and any other constitutionally created independent body, like
the electoral tribunals in Congress, the Comelec and the Constituent assemblies constituted by the
House of Congress, on the other. We see no reason of logic or principle whatsoever, and none has
been convincingly shown to Us by any of the respondents and intervenors, why the same ruling
should not apply to the present Convention, even if it is an assembly of delegate elected directly by
the people, since at best, as already demonstrated, it has been convened by authority of and under
the terms of the present Constitution..

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the Court, but simply because both the
Convention and the Court are subject to the Constitution and the rule of law, and "upon principle,
reason and authority," per Justice Laurel, supra, it is within the power as it is the solemn duty of the
Court, under the existing Constitution to resolve the issues in which petitioner, respondents and
intervenors have joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of
the Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen years the age for the exercise of
suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic
Resolution No. 1 in the manner and form provided for in said resolution and the subsequent
implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of the right of suffrage to the
eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed
amendment here involved be submitted to the people for ratification, his only purpose in filing the
petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or in connection with the most
laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited
solely and only to the point of whether or not it is within the power of the Convention to call for a
plebiscite for the ratification by the people of the constitutional amendment proposed in the
abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well
as in the subject question implementing actions and resolution of the Convention and its officers, at
this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is
not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms
or amendments affecting other parts of the existing Constitution; and, indeed, Organic Resolution
No. 1 itself expressly provides, that the amendment therein proposed "shall be without prejudice to
other amendments that will be proposed in the future by the 1971 Constitutional Convention on other
portions of the amended section or on other portions of the entire Constitution." In other words,
nothing that the Court may say or do, in this case should be understood as reflecting, in any degree
or means the individual or collective stand of the members of the Court on the fundamental issue of
whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not
before Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment
may be presented to the people for their approval or rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not
blinded them to the absolute necessity, under the fundamental principles of democracy to which the
Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity
and purity of purpose cannot permit any other line of conduct or approach in respect of the problem
before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of
the pressure brought to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing
about meaningful changes in the structure and bases of the existing social and governmental
institutions, including the provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those concerning the preservation
and protection of our natural resources and the national patrimony, as an alternative to violent and
chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which
at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and
campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion
and disorder, anarchy and violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to change the present order
of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the applicable provisions of the
Constitution. Needless to say, in a larger measure than when it binds other departments of the
government or any other official or entity, the Constitution imposes upon the Court the sacred duty to
give meaning and vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act violative thereof. Here, as in
all other cases, We are resolved to discharge that duty.

During these twice when most anyone feels very strongly the urgent need for constitutional reforms,
to the point of being convinced that meaningful change is the only alternative to a violent revolution,
this Court would be the last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been called to supplant the
existing Constitution in its entirety, since its enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of amendments which shall form part of it, which
opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is
that only the collective judgment of its members as to what is warranted by the present condition of
things, as they see it, can limit the extent of the constitutional innovations the Convention may
propose, hence the complete substitution of the existing constitution is not beyond the ambit of the
Convention's authority. Desirable as it may be to resolve, this grave divergence of views, the Court
does not consider this case to be properly the one in which it should discharge its constitutional duty
in such premises. The issues raised by petitioner, even those among them in which respondents and
intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled and
unrestrained in the performance of its constitutionally as signed mission in the manner and form it
may conceive best, and so the Court may step in to clear up doubts as to the boundaries set down
by the Constitution only when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a
very familiar principle of constitutional law that constitutional questions are to be resolved by the
Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other coordinate departments of the
government, and certainly, the Constitutional Convention stands almost in a unique footing in that
regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to
its internal operation and the performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all subject to all the provisions of the
existing Constitution. Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation. From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any limitations, restraints or inhibitions
save those that they may impose upon themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. Generally, the framers of the latter see to it
that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such limitations or
conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because they
are as powerful and omnipotent as their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and nature
and the scope and extent of the amendments the Convention may deem proper to propose. Nor
does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to
whether or not the power or duty to call a plebiscite for the ratification of the amendments to be
proposed by the Convention is exclusively legislative and as such may be exercised only by the
Congress or whether the said power can be exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it does not perceive absolute necessity to
resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of
a consensus among the members of the Court in respect to this issue creates the need for more
study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8,
1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from
making any pronouncement or expressing Our views on this question until a more appropriate case
comes to Us. After all, the basis of this decision is as important and decisive as any can be.

The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of
Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite
on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it
is the condition and limitation that all the amendments to be proposed by the same Convention must
be submitted to the people in a single "election" or plebiscite. It being indisputable that the
amendment now proposed to be submitted to a plebiscite is only the first amendment the
Convention propose We hold that the plebiscite being called for the purpose of submitting the same
for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the
Constitution, hence all acts of the Convention and the respondent Comelec in that direction are null
and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that
either Congress sitting as a constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution," thus placing no limit as to the number of amendments
that Congress or the Convention may propose. The same provision also as definitely provides that
"such amendments shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the people for their ratification,"
thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any
amendment or amendments proposed by the same constituent assembly of Congress or convention,
and the provision unequivocably says "an election" which means only one.

(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an undertaking
as constitution making itself. Indeed, any amendment of the Constitution is as important as the
whole of it if only because the Constitution has to be an integrated and harmonious instrument, if it is
to be viable as the framework of the government it establishes, on the one hand, and adequately
formidable and reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the
other. lt is inconceivable how a constitution worthy of any country or people can have any part which
is out of tune with its other parts..

A constitution is the work of the people thru its drafters assembled by them for the purpose. Once
the original constitution is approved, the part that the people play in its amendment becomes harder,
for when a whole constitution is submitted to them, more or less they can assumed its harmony as
an integrated whole, and they can either accept or reject it in its entirety. At the very least, they can
examine it before casting their vote and determine for themselves from a study of the whole
document the merits and demerits of all or any of its parts and of the document as a whole. And so
also, when an amendment is submitted to them that is to form part of the existing constitution, in like
fashion they can study with deliberation the proposed amendment in relation to the whole existing
constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the fact that
under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided
the voter, as to what finally will be concomitant qualifications that will be required by the final draft of
the constitution to be formulated by the Convention of a voter to be able to enjoy the right of
suffrage, there are other considerations which make it impossible to vote intelligently on the
proposed amendment, although it may already be observed that under Section 3, if a voter would
favor the reduction of the voting age to eighteen under conditions he feels are needed under the
circumstances, and he does not see those conditions in the ballot nor is there any possible indication
whether they will ever be or not, because Congress has reserved those for future action, what kind
of judgment can he render on the proposal?

But the situation actually before Us is even worse. No one knows what changes in the fundamental
principles of the constitution the Convention will be minded to approve. To be more specific, we do
not have any means of foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide for varying types of
voters for each level of the political units it may divide the country into. The root of the difficulty in
other words, lies in that the Convention is precisely on the verge of introducing substantial changes,
if not radical ones, in almost every part and aspect of the existing social and political order enshrined
in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the
effect of the reduction of the voting age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis
for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a harmonious whole. In the context of the present
state of things, where the Convention has hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the existing Constitution, to present to the people any single
proposal or a few of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of reference they can base their judgment on. We
reject the rationalization that the present Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole purpose of the proposed amendment is
to enable the eighteen year olds to take part in the election for the ratification of the Constitution to
be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language
of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".

III

The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal to allow
these eighteen years old to vote. But like the Convention, the Court has its own duties to the people
under the Constitution which is to decide in appropriate cases with appropriate parties Whether or
not the mandates of the fundamental law are being complied with. In the best light God has given
Us, we are of the conviction that in providing for the questioned plebiscite before it has finished, and
separately from, the whole draft of the constitution it has been called to formulate, the Convention's
Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate
the condition in Section 1, Article XV that there should only be one "election" or plebiscite for the
ratification of all the amendments the Convention may propose. We are not denying any right of the
people to vote on the proposed amendment; We are only holding that under Section 1, Article XV of
the Constitution, the same should be submitted to them not separately from but together with all the
other amendments to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention,
insofar as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution
of the respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null
and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the
Constitutional Convention are hereby enjoined from taking any action in compliance with the said
organic resolution. In view of the peculiar circumstances of this case, the Court declares this
decision immediately executory. No costs.

Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.

Separate Opinions

MAKALINTAL, J., reserves his vote

I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on
just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. However, considering the urgent nature of this
case, the lack of time to set down at length my opinion on the particular issue upon which the
decision is made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and ruled upon a
task that would be premature and pointless at this time I limit myself to this reservation.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and
vigorous style. Like him, we do not express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a matter that properly and
exclusively addresses itself to the collective judgment of the people.

We must, however, articulate two additional objections of constitutional dimension which, although
they would seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and
submit each separately to the people for ratification, we are nonetheless persuaded that (1) that
there is no proper submission of title proposed amendment in question within the meaning and
intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election
is not the proper election envisioned by the same provision of the Constitution.

Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on

Elections1 and Philippine Constitution Association vs. Commission on Elections,2 expounded his
view, with which we essentially agree, on the minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed constitutional amendment. This is
what he said:

... amendments must be fairly laid before the people for their blessing or spurning.
The people are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the
provisions to be amended, and the proposed amendments and the meaning, nature
and effects thereof. By this, we are not to be understood as saying that, if one citizen
or 100 citizens or 1,000 citizens cannot be reached, then there is no submission
within the meaning of the word as intended by the framers of the Constitution. What
the Constitution in effect directs is that the government, in submitting an amendment
for ratification, should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing is submission and
another is ratification. There must be fair submission, intelligent consent or rejection."
.

The second constitutional objection was given expression by one of the writers of this concurring
opinion, in the following words:

I find it impossible to believe that it was ever intended by its framers that such
amendment should be submitted and ratified by just "a majority of the votes cast at
an election at which the amendments are submitted to the people for their
ratification", if the concentration of the people's attention thereon is to be diverted by
other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only meant that any
amendments thereto should be debated, considered and voted upon an election
wherein the people could devote undivided attention to the subject.4

True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-
year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
render compulsory military service under the colors? Will the age of contractual consent be reduced
to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .

The above are just samplings from here, there and everywhere from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.

Upon the above disquisition, it is our considered view that the intendment of the words, "at an
election at which the amendments are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.

FERNANDO, J., concurring and dissenting:

There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by
clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy.
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the acceptance of the
conclusion reached. The question presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no legal impediment that would call for
its nullification. Such an approach all the more commends itself to me considering that what was
sought to be done is to refer the matter to the people in whom, according to our Constitution,
sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be resolved by reliance on,
implicit in the petition and the answer of intervenors, such concepts as legislative control of the
constitutional convention referred to by petitioner on the one hand or, on the other, the theory of
conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument
of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state,
that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised
by a constitutional convention are dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a convention that is subordinate to the
lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's
Appeal.1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides.2 Such a prerogative is therefore withheld from
a convention. It is an agency entrusted with the responsibility of high import and significance it is
true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to
yield to the superior force of the Constitution. There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be admitted that there are some American
state decisions, the most notable of which is Sproule v. Fredericks,3 a Mississippi case, that dates
back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our
Constitution makes clear that the power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing
revision or amendments to one in existence, subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there being no superiority of one over the other.
Insofar as the constituent power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which
can be the only source of valid restriction on its competence. It is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct
statement of the appropriate principle that should govern the relationship between a constitutional
convention and a legislative body under American law is that found in Orfield's work. Thus: "The
earliest view seems to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd
that a convention, though not sovereign, is a body independent of the legislature; it is bound by
the existing constitution, but not by the acts of the legislature, as to the extent of its constituent
power. This view has become increasingly prevalent in the state decisions."4

2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion
of the Court, that any limitation on the power the Constitutional, Convention must find its source. I
turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of
all the Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."

Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal
and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the
Congress of the Philippines in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and thereafter take all the steps
necessary so that the approval or disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the necessary authority to assure that
whatever amendments it seeks to introduce would be submitted to the people at an election called
for that purpose. It would appear to me that to view the convention as being denied a prerogative
which is not withheld from Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and constitutional convention are
agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.

Such a conclusion has for me the added reinforcement that to require ordinary legislation before the
convention could be enabled to have its proposals voted on by the people would be to place a power
in the legislative and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such likelihood is remote, but if such
a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious
abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.

From such an approach then, I am irresistibly led to the conclusion that the challenged resolution
was well within the power of the convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for
me, to give added vigor and life to the conferment of authority vested in it, attended by such grave
and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such
amendment shall be valid when submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my
brethren that there is to be only one election and that therefore the petition must be sustained as
only when the convention has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance
should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.

It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not
such as was contemplated in this article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people by the proposed submission
of a tentative amendatory provision is an argument for its validity. It might be said of course that until
impressed with finality, an amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain
or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being charged with such a duty does
not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of
election. That is a purely executive function vested in it under Article X of the Constitution.5 It is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional
Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the
legitimate discharge of its functions.6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characterized as in any wise bereft of a persuasive quality of a high order.

Separate Opinions

MAKALINTAL, J., reserves his vote

I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on
just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. However, considering the urgent nature of this
case, the lack of time to set down at length my opinion on the particular issue upon which the
decision is made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and ruled upon a
task that would be premature and pointless at this time I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and
vigorous style. Like him, we do not express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a matter that properly and
exclusively addresses itself to the collective judgment of the people.

We must, however, articulate two additional objections of constitutional dimension which, although
they would seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and
submit each separately to the people for ratification, we are nonetheless persuaded that (1) that
there is no proper submission of title proposed amendment in question within the meaning and
intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election
is not the proper election envisioned by the same provision of the Constitution.

Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on

Elections1 and Philippine Constitution Association vs. Commission on Elections,2 expounded his
view, with which we essentially agree, on the minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed constitutional amendment. This is
what he said:

... amendments must be fairly laid before the people for their blessing or spurning.
The people are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the
provisions to be amended, and the proposed amendments and the meaning, nature
and effects thereof. By this, we are not to be understood as saying that, if one citizen
or 100 citizens or 1,000 citizens cannot be reached, then there is no submission
within the meaning of the word as intended by the framers of the Constitution. What
the Constitution in effect directs is that the government, in submitting an amendment
for ratification, should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing is submission and
another is ratification. There must be fair submission, intelligent consent or rejection."
.

The second constitutional objection was given expression by one of the writers of this concurring
opinion, in the following words:

I find it impossible to believe that it was ever intended by its framers that such
amendment should be submitted and ratified by just "a majority of the votes cast at
an election at which the amendments are submitted to the people for their
ratification", if the concentration of the people's attention thereon is to be diverted by
other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only meant that any
amendments thereto should be debated, considered and voted upon an election
wherein the people could devote undivided attention to the subject.4

True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-
year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
render compulsory military service under the colors? Will the age of contractual consent be reduced
to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .

The above are just samplings from here, there and everywhere from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.

Upon the above disquisition, it is our considered view that the intendment of the words, "at an
election at which the amendments are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.

FERNANDO, J., concurring and dissenting:

There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by
clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy.
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the acceptance of the
conclusion reached. The question presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no legal impediment that would call for
its nullification. Such an approach all the more commends itself to me considering that what was
sought to be done is to refer the matter to the people in whom, according to our Constitution,
sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be resolved by reliance on,
implicit in the petition and the answer of intervenors, such concepts as legislative control of the
constitutional convention referred to by petitioner on the one hand or, on the other, the theory of
conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument
of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state,
that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised
by a constitutional convention are dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a convention that is subordinate to the
lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's
Appeal.1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides.2 Such a prerogative is therefore withheld from
a convention. It is an agency entrusted with the responsibility of high import and significance it is
true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to
yield to the superior force of the Constitution. There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be admitted that there are some American
state decisions, the most notable of which is Sproule v. Fredericks,3 a Mississippi case, that dates
back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our
Constitution makes clear that the power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing
revision or amendments to one in existence, subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there being no superiority of one over the other.
Insofar as the constituent power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which
can be the only source of valid restriction on its competence. It is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct
statement of the appropriate principle that should govern the relationship between a constitutional
convention and a legislative body under American law is that found in Orfield's work. Thus: "The
earliest view seems to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd
that a convention, though not sovereign, is a body independent of the legislature; it is bound by
the existing constitution, but not by the acts of the legislature, as to the extent of its constituent
power. This view has become increasingly prevalent in the state decisions."4

2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion
of the Court, that any limitation on the power the Constitutional, Convention must find its source. I
turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of
all the Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."

Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal
and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the
Congress of the Philippines in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and thereafter take all the steps
necessary so that the approval or disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the necessary authority to assure that
whatever amendments it seeks to introduce would be submitted to the people at an election called
for that purpose. It would appear to me that to view the convention as being denied a prerogative
which is not withheld from Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and constitutional convention are
agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.

Such a conclusion has for me the added reinforcement that to require ordinary legislation before the
convention could be enabled to have its proposals voted on by the people would be to place a power
in the legislative and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such likelihood is remote, but if such
a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious
abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the challenged resolution
was well within the power of the convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for
me, to give added vigor and life to the conferment of authority vested in it, attended by such grave
and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such
amendment shall be valid when submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my
brethren that there is to be only one election and that therefore the petition must be sustained as
only when the convention has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance
should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.

It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not
such as was contemplated in this article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people by the proposed submission
of a tentative amendatory provision is an argument for its validity. It might be said of course that until
impressed with finality, an amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain
or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being charged with such a duty does
not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of
election. That is a purely executive function vested in it under Article X of the Constitution.5 It is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional
Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the
legitimate discharge of its functions.6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characterized as in any wise bereft of a persuasive quality of a high order.
 [G.R. No. 127325. March 19, 1997]

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and MARIA

ISABEL ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS,
JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in
their capacities as founding members of the Peoples Initiative
for Reforms, Modernization and Action
(PIRMA), respondents, SENATOR RAUL S. ROCO,
DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY
AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.

DECISION
DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for

prohibition under Rule 65 of the Rules of Court is the right of the people to
directly propose amendments to the Constitution through the system
of initiative under Section 2 of Article XVII of the 1987
Constitution. Undoubtedly, this demands special attention, as this system of
initiative was unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional
Commission itself, through the original proponent and the main sponsor of
[1] [2]

the proposed Article on Amendments or Revision of the Constitution,

characterized this system as innovative. Indeed it is, for both under the 1935
[3]

and 1973 Constitutions, only two methods of proposing amendments to, or

revision of, the Constitution were recognized, viz., (1) by Congress upon a
vote of three-fourths of all its members and (2) by a constitutional
convention. For this and the other reasons hereafter discussed, we resolved
[4]

to give due course to this petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with
public respondent Commission on Elections (hereafter, COMELEC) a Petition
to Amend the Constitution, to Lift Term Limits of Elective Officials, by Peoples
Initiative (hereafter, Delfin Petition) wherein Delfin asked the COMELEC for
[5]

an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the
dates designated for the purpose.

Delfin alleged in his petition that he is a founding member of the

Movement for Peoples Initiative, a group of citizens desirous to avail of the
[6]

system intended to institutionalize people power; that he and the members of

the Movement and other volunteers intend to exercise the power to directly
propose amendments to the Constitution granted under Section 2, Article XVII
of the Constitution; that the exercise of that power shall be conducted in
proceedings under the control and supervision of the COMELEC; that, as
required in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal election
registrars, who shall verify the signatures affixed by individual signatories; that
before the Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the purpose be first
fixed in an order to be issued by the COMELEC; and that to adequately inform
the people of the electoral process involved, it is likewise necessary that the
said order, as well as the Petition on which the signatures shall be affixed, be
published in newspapers of general and local circulation, under the control
and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI, Section 4 of Article VII, and
[7] [8]

Section 8 of Article X of the Constitution.Attached to the petition is a copy of

[9]

a Petition for Initiative on the 1987 Constitution embodying the proposed

[10]

amendments which consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE

GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4
AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to
the people, and after it is signed by at least twelve per cent of the total number
of registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the
number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman,
issued an Order (a) directing Delfin to cause the publication of the petition,
[11]

together with the attached Petition for Initiative on the 1987 Constitution
(including the proposal, proposed constitutional amendment, and the
signature form), and the notice of hearing in three (3) daily newspapers of
general circulation at his own expense not later than 9 December 1996;
and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following
appeared: Delfin and Atty. Pete Q. Quadra; representatives of the Peoples
Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor
Senator Raul S. Roco, together with his two other lawyers; and
representatives of, or counsel for, the Integrated Bar of the Philippines (IBP),
Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center,
and Laban ng Demokratikong Pilipino (LABAN). Senator Roco, on that same
[12]

day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the
initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the
oppositors to file their memoranda and/or oppositions/memoranda within five
days.[13]
 On 18 December 1996, the petitioners herein -- Senator Miriam Defensor
Santiago, Alexander Padilla, and Maria Isabel Ongpin -- filed this special civil
action for prohibition raising the following arguments:

(1) The constitutional provision on peoples initiative to amend the Constitution can
only be implemented by law to be passed by Congress. No such law has been passed;
in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitutional Amendments by Peoples Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in 1994:
There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar as initiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for the
exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.

(5)The peoples initiative is limited to amendments to the Constitution, not

to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the peoples initiative.

(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the
COMELEC nor any other government department, agency, or office has realigned
funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition,
the peoples initiative spearheaded by PIRMA would entail expenses to the
national treasury for general re-registration of voters amounting to at least
P180 million, not to mention the millions of additional pesos in expenses
which would be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely,
brushing aside technicalities of procedure and calling for the admission of a
taxpayers and legislators suit. Besides, there is no other plain, speedy, and
[14]

adequate remedy in the ordinary course of law.

On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten days from
notice; and (b) issued a temporary restraining order, effective immediately and
continuing until further orders, enjoining public respondent COMELEC from
proceeding with the Delfin Petition, and private respondents Alberto and
Carmen Pedrosa from conducting a signature drive for peoples initiative to
amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment on the petition. They argue therein that:
[15]

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL

TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO
AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00) IF
THE COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN
BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL

GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING
ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES
SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY
PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS
VOLUNTEERS IS P2,571, 200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE

SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND TO
SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY JURISDICTION
UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING

LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-
SANTIAGOS SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE
ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991

PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT
IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC
BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416
WHERE THE HONORABLE COURT SAID: THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND
LOCAL USE, IN IMPLEMENTING OF THESE LAWS.
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290
CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO
PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY
TO CARRY OUT THE PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF

ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT
A REVISION OF THE CONSTITUTION. IT IS ONLY AN
AMENDMENT. AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION
CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED. (PP.
412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G.
BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment which starts off with an assertion that the instant petition is a knee-
[16]

jerk reaction to a draft Petition for Initiative on the 1987 Constitution ... which
is not formally filed yet. What he filed on 6 December 1996 was an Initiatory
Pleading or Initiatory Petition, which was legally necessary to start the
signature campaign to amend the Constitution or to put the movement to
gather signatures under COMELEC power and function. On the substantive
allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of a
subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by
(a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the
power to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A.
6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek to
reexamine or overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers

petitioners estimate of P180 million as unreliable, for only the COMELEC can
give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because it will
be for the exercise of the sovereign power of the people.
In the Comment for the public respondent COMELEC, filed also on 2
[17]

January 1997, the Office of the Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and
guarantees that power; and its Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution and defines the same as the power
to propose amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included in
the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC .

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to
Lift Temporary Restraining Order filed by private respondents through Atty.
Quadra, as well as the latters Manifestation stating that he is the counsel for
private respondents Alberto and Carmen Pedrosa only and the Comment he
filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on
6 January 1997 by Senator Raul Roco and allowed him to file his Petition in
Intervention not later than 20 January 1997; and (d) set the case for hearing
on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK)
and the Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc.
(MABINI), filed a Motion for Intervention. Attached to the motion was their
Petition in Intervention, which was later replaced by an Amended Petition in
Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., it would involve a
[18]

change from a political philosophy that rejects unlimited tenure to one that accepts
unlimited tenure; and although the change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization of elections and on the State
policy of guaranteeing equal access to opportunities for public service and prohibiting
political dynasties. A revision cannot be done by initiative which, by express
[19]

provision of Section 2 of Article XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all
other national and local elective officials are based on the philosophy of governance,
to open up the political arena to as many as there are Filipinos qualified to handle the
demands of leadership, to break the concentration of political and economic powers in
the hands of a few, and to promote effective proper empowerment for participation in
policy and decision-making for the common good; hence, to remove the term limits is
to negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance. [20]

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the peoples initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the appropriate agency before
whom the petition is to be filed, (c) the contents of the petition, (d) the publication of
the same, (e) the ways and means of gathering the signatures of the voters nationwide
and 3% per legislative district, (f) the proper parties who may oppose or question the
veracity of the signatures, (g) the role of the COMELEC in the verification of the
signatures and the sufficiency of the petition, (h) the appeal from any decision of the
COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such
peoples initiative. Accordingly, there being no enabling law, the COMELEC has no
jurisdiction to hear Delfins petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a peoples initiative under Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not set a
sufficient standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in

Intervention. He avers that R.A. No. 6735 is the enabling law that
[21]

implements the peoples right to initiate constitutional amendments. This law is

a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-
authored the House Bill and even delivered a sponsorship speech thereon. He
likewise submits that the COMELEC was empowered under Section 20 of that
law to promulgate COMELEC Resolution No. 2300. Nevertheless, he
contends that the respondent Commission is without jurisdiction to take
cognizance of the Delfin Petition and to order its publication because the said
petition is not the initiatory pleading contemplated under the Constitution,
Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests
jurisdiction upon the COMELEC in an initiative on the Constitution is the filing
of a petition for initiative which is signed by the required number of registered
voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them is
securing the required number of signatures, as the COMELECs role in an
initiative on the Constitution is limited to the determination of the sufficiency of
the initiative petition and the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it
attached a Petition in Intervention raising the following arguments:

(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention. [22]

On 21 January 1997, we promulgated a Resolution (a) granting the

Motions for Intervention filed by the DIK and MABINI and by the IBP, as well
as the Motion for Leave to Intervene filed by LABAN; (b) admitting the
Amended Petition in Intervention of DIK and MABINI, and the Petitions in
Intervention of Senator Roco and of the IBP; (c) requiring the respondents to
file within a nonextendible period of five days their Consolidated Comments
on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its
Petition in Intervention within a nonextendible period of three days from
notice, and the respondents to comment thereon within a nonextendible
period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the
following pivotal issues, which the Court formulated in light of the allegations
and arguments raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative
and Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft Petition for Initiative on the 1987 Constitution, would constitute
a revision of, or an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature gathering;
(b) instructing municipal election officers to assist Delfin's movement and volunteers
in establishing signature stations; and (c) directing or causing the publication of, inter
alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit

simultaneously their respective memoranda within twenty days and requested
intervenor Senator Roco to submit copies of the deliberations on House Bill
No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it
adopts the allegations and arguments in the main Petition. It further submits
that the COMELEC should have dismissed the Delfin Petition for failure to
state a sufficient cause of action and that the Commissions failure or refusal to
do so constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both
the Journal and the Record of the House of Representatives relating to the
deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference
Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on
House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI,
and IBP. The parties thereafter filed, in due time, their separate
[23]

memoranda. [24]

As we stated in the beginning, we resolved to give due course to this

special civil action.
For a more logical discussion of the formulated issues, we shall first take
up the fifth issue which appears to pose a prejudicial procedural question.
I

THE INSTANT PETITION IS VIABLE DESPITE THE

PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious
attention to the fifth issue, i.e., whether it is proper for this Court to take
cognizance of this special civil action when there is a pending case before the
COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition
for prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of the
questioned Comelec order. The consequent climate of legal confusion and political
instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court can save a nation in peril and
uphold the paramount majesty of the Constitution. [25]

It must be recalled that intervenor Roco filed with the COMELEC a motion
to dismiss the Delfin Petition on the ground that the COMELEC has no
jurisdiction or authority to entertain the petition. The COMELEC made no
[26]

ruling thereon evidently because after having heard the arguments of Delfin
and the oppositors at the hearing on 12 December 1996, it required them to
submit within five days their memoranda or oppositions/memoranda. Earlier, [27]

or specifically on 6 December 1996, it practically gave due course to the

Delfin Petition by ordering Delfin to cause the publication of the petition,
together with the attached Petition for Initiative, the signature form, and the
notice of hearing; and by setting the case for hearing. The COMELECs failure
to act on Rocos motion to dismiss and its insistence to hold on to the petition
rendered ripe and viable the instant petition under Section 2 of Rule 65 of the
Rules of Court, which provides:

SEC. 2. Petition for prohibition. -- Where the proceedings of any tribunal,

corporation, board, or person, whether exercising functions judicial or ministerial, are
without or in excess of its or his jurisdiction, or with grave abuse of discretion, and
there is no appeal or any other plain, speedy and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper
court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant to desist from further proceedings in the action or matter
specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has
no jurisdiction over the Delfin Petition because the said petition is not
supported by the required minimum number of signatures of registered
voters. LABAN also asserts that the COMELEC gravely abused its discretion
in refusing to dismiss the Delfin Petition, which does not contain the required
number of signatures. In light of these claims, the instant case may likewise
be treated as a special civil action for certiorari under Section I of Rule 65 of
the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of procedure in cases
of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona,
Jr.:
[28]

A partys standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because
the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.
 II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book, Joaquin Bernas, a

[29]

member of the 1986 Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode
of amending the Constitution is a mode of amendment which bypasses congressional
action, in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the
cold niche of the Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution has recognized or
granted that right, the people cannot exercise it if Congress, for whatever
reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft
Article on Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No.
332). That section reads as follows:
[30]

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article ____
Section ____ of the Constitution. [31]

After several interpellations, but before the period of amendments, the

Committee submitted a new formulation of the concept of initiative which it
denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of
the Members of the Commission that pursuant to the mandate given to us last night,
we submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section
2 of the complete committee report. With the permission of the Members, may I quote
Section 2:

The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.

This completes the blanks appearing in the original Committee Report No. 7. [32]

The interpellations on Section 2 showed that the details for carrying out
Section 2 are left to the legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there
are no details in the provision on how to carry this out. Do we understand, therefore,
that we are leaving this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature
does not pass the necessary implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be legislated
so that the plebiscite could be called. We deemed it best that this matter be left to the
legislature. The Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years from the date of the
ratification of this Constitution. Therefore, the first amendment that could be proposed
through the exercise of this initiative power would be after five years. It is reasonably
expected that within that five-year period, the National Assembly can come up with
the appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature - the details on how this is to
be carried out - is it possible that, in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the people? Does this provision
exclude that possibility?

MR. SUAREZ. No, it does not exclude that possibility because even the legislature
itself as a body could propose that amendment, maybe individually or collectively, if
it fails to muster the three-fourths vote in order to constitute itself as a constituent
assembly and submit that proposal to the people for ratification through the process of
an initiative.

xxx

MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is
to vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy
of legal mandate, constituent power has primacy over all other legal mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we require a
great deal of circumspection in the drafting and in the amendments of the
Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we
have a separate article in the constitution that would specifically cover the process and
the modes of amending the Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the requirement of determining
the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this provision the
mechanics that would adequately cover all the conceivable situations. [33]

It was made clear during the interpellations that the aforementioned

Section 2 is limited to proposals to AMEND -- not to REVISE -- the
Constitution; thus:

MR. SUAREZ. ... This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year, has
to be separated from the traditional modes of amending the Constitution as embodied
in Section 1. The committee members felt that this system of initiative should not
extend to the revision of the entire Constitution, so we removed it from the operation
of Section 1 of the proposed Article on Amendment or Revision. [34]

xxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of

initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section as if
it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand into
a revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas
the process of initiation to amend, which is given to the public, would only apply to
amendments?

MR. SUAREZ.That is right. Those were the terms envisioned in the Committee. [35]

Amendments to the proposed Section 2 were thereafter introduced by

then Commissioner Hilario G. Davide, Jr., which the Committee
accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section
2 with the following:

xxx

MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now
read as follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE

IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is

reflective of the sense contained in Section 2 of our completed Committee Report No.
7, we accept the proposed amendment. [36]

The interpellations which ensued on the proposed modified amendment to

Section 2 clearly showed that it was a legislative act which must implement
the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the

legislature to set forth certain procedures to carry out the initiative...?

MR. DAVIDE. It can.

xxx
MR. ROMULO. But the Commissioners amendment does not prevent the legislature
from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of

this particular right would be subject to legislation, provided the legislature
cannot determine anymore the percentage of the requirement.

MR. ROMULO. But the procedures, including the determination of the proper form
for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish or
impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?

MR. DAVIDE. Yes. [37]

Commissioner Davide also reaffirmed that his modified amendment strictly

confines initiative to AMENDMENTS to -- NOT REVISION of -- the
Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment

on line 1 refers to "amendment." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision." [38]

Commissioner Davide further emphasized that the process of proposing

amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved
is an amendment to the Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number. Moreover, just to submit the
issue of calling a constitutional convention, a majority of the National Assembly is
required, the import being that the process of amendment must be made more rigorous
and difficult than probably initiating an ordinary legislation or putting an end to a law
proposed by the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the Legislative or on
the National Assembly on plenary sessions. [39]
 The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission approved by a vote
of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as

follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE

IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. [40]

The entire proposed Article on Amendments or Revisions was approved on

second reading on 9 July 1986. Thereafter, upon his motion for
[41]

reconsideration, Commissioner Gascon was allowed to introduce an

amendment to Section 2 which, nevertheless, was withdrawn. In view thereof,
the Article was again approved on Second and Third Readings on 1 August
1986. [42]

However, the Committee on Style recommended that the approved

Section 2 be amended by changing percent to per centum and thereof to
therein and deleting the phrase by law in the second paragraph so that said
paragraph reads: The Congress shall provide for the implementation of the
[43]

exercise of this right. This amendment was approved and is the text of the
[44]

present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on
the Constitution under Section 2 of Article XVII of the Constitution is not self-
executory.
Has Congress provided for the implementation of the exercise of this
right? Those who answer the question in the affirmative, like the private
respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the
exercise of the right than through the passage of a statute or legislative
act. This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2 of
Article XVII then reading:

The Congress[45] shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.
 This substitute amendment was an investiture on Congress of a power to
provide for the rules implementing the exercise of the right. The rules means
the details on how [the right] is to be carried out. [46]

We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was
prepared by the Committee on Suffrage and Electoral Reforms of the House
of Representatives on the basis of two House Bills referred to it, viz., (a)
House Bill No. 497, which dealt with the initiative and referendum mentioned
[47]

in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
988, which dealt with the subject matter of House Bill No. 497, as well as
[48]

with initiative and referendum under Section 3 of Article X (Local Government)

and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 solely dealt with initiative and referendum
[49]

concerning ordinances or resolutions of local government units. The

Bicameral Conference Committee consolidated Senate Bill No. 17 and House
Bill No. 21505 into a draft bill, which was subsequently approved on 8 June
1989 by the Senate and by the House of Representatives. This approved
[50] [51]

bill is now R.A. No. 6735.

But is R.A. No. 6735 a full compliance with the power and duty of
Congress to provide for the implementation of the exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2
of the Act does not suggest an initiative on amendments to the
Constitution. The said section reads:

SECTION 2. Statement and Policy. -- The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Underscoring supplied).

The inclusion of the word Constitution therein was a delayed afterthought.

That word is neither germane nor relevant to said section, which exclusively
relates to initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as to amendments on the
Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power
to directly propose, enact, approve, or reject, in whole or in part, the
Constitution through the system of initiative. They can only do so with respect
to laws, ordinances, or resolutions.
The foregoing conclusion is further buttressed by the fact that this section
was lifted from Section 1 of Senate Bill No. 17, which solely referred to a
statement of policy on local initiative and referendum and appropriately used
the phrases propose and enact, approve or reject and in whole or in part. [52]

Second. It is true that Section 3 (Definition of Terms) of the Act

defines initiative on amendments to the Constitution and mentions it as one of
the three systems of initiative, and that Section 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who
must submit the proposal. But unlike in the case of the other systems
of initiative, the Act does not provide for the contents of a petition for initiative
on the Constitution. Section 5, paragraph (c) requires, among other things,
statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among the
contents of the petition, the provisions of the Constitution sought to be
amended, in the case of initiative on the Constitution. Said paragraph (c)
reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Underscoring supplied).

The use of the clause proposed laws sought to be enacted, approved or

rejected, amended or repealed only strengthens the conclusion that Section 2,
quoted earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III),
no subtitle is provided for initiative on the Constitution. This conspicuous
silence as to the latter simply means that the main thrust of the Act is initiative
and referendum on national and local laws. If Congress intended R.A. No.
6735 to fully provide for the implementation of the initiative on amendments to
the Constitution, it could have provided for a subtitle therefor, considering that
in the order of things, the primacy of interest, or hierarchy of values, the right
of the people to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and
Referendum because it is national in scope. Our reading of Subtitle II
(National Initiative and Referendum) and Subtitle III (Local Initiative and
Referendum) leaves no room for doubt that the classification is not based on
the scope of the initiative involved, but on its nature and character. It is
national initiative, if what is proposed to be adopted or enacted is a national
law, or a law which only Congress can pass.It is local initiative if what is
proposed to be adopted or enacted is a law, ordinance, or resolution which
only the legislative bodies of the governments of the autonomous regions,
provinces, cities, municipalities, and barangays can pass. This classification of
initiative into national and local is actually based on Section 3 of the Act,
which we quote for emphasis and clearer understanding:

SEC. 3. Definition of terms --

xxx

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to

the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national

legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Underscoring supplied).

Hence, to complete the classification under subtitles there should have

been a subtitle on initiative on amendments to the Constitution. [53]

A further examination of the Act even reveals that the subtitling is

not accurate. Provisions not germane to the subtitle on National Initiative and
Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9,
which reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in
an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Underscoring supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative

with the legislative bodies of local governments; thus:

SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies....

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC

on the findings of sufficiency or insufficiency of the petition for initiative or
referendum, which could be petitions for both national and local initiative and
referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle III
on Local Initiative and Referendum is misplaced, since the provision therein
[54]

applies to both national and local initiative and referendum. It reads:

SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body
to enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in
providing for the details in the implementation of initiative and referendum on
national and local legislation thereby giving them special attention, it failed,
rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for
the following:

(a) The required percentage of registered voters to sign the petition and the contents of
the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of
votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a

newspaper of general circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. [55]

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for
the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative bodys failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have been
obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to
the registered voters for their approval, which must be within the period specified
therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. [56]

Upon the other hand, as to initiative on amendments to the

Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a)
mentions, the word Constitution in Section 2; (b) defines initiative on the
Constitution and includes it in the enumeration of the three systems of
initiative in Section 3; (c) speaks of plebiscite as the process by which the
proposition in an initiative on the Constitution may be approved or rejected by
the people; (d) reiterates the constitutional requirements as to the number of
voters who should sign the petition; and (e) provides for the date of effectivity
of the approved proposition.
There was, therefore, an obvious downgrading of the more important or
the paramount system of initiative. R.A. No. 6735 thus delivered a humiliating
blow to the system of initiative on amendments to the Constitution by merely
paying it a reluctant lip service. [57]

The foregoing brings us to the conclusion that R.A. No. 6735 is

incomplete, inadequate, or wanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned. Its lacunae on
this substantive matter are fatal and cannot be cured by empowering the
COMELEC to promulgate such rules and regulations as may be necessary to
carry out the purposes of [the] Act. [58]

The rule is that what has been delegated, cannot be delegated or as

expressed in a Latin maxim: potestas delegata non delegari potest. The [59]

recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of
the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article
VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. [60]

Empowering the COMELEC, an administrative body exercising quasi-

judicial functions, to promulgate rules and regulations is a form of delegation
of legislative authority under no. 5 above. However, in every case of
permissible delegation, there must be a showing that the delegation itself is
valid. It is valid only if the law (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b)
fixes a standard -- the limits of which are sufficiently determinate and
determinable -- to which the delegate must conform in the performance of his
functions. A sufficient standard is one which defines legislative policy, marks
[61]

its limits, maps out its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is to be
effected.[62]

Insofar as initiative to propose amendments to the Constitution is

concerned, R.A. No. 6735 miserably failed to satisfy both requirements in
subordinate legislation. The delegation of the power to the COMELEC is then
invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly
propose amendments to the Constitution through the system of initiative. It
does not have that power under R.A. No. 6735. Reliance on the COMELECs
power under Section 2(1) of Article IX-C of the Constitution is misplaced, for
the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
where subordinate legislation is authorized and which satisfies the
completeness and the sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance
with the power of Congress to implement the right to initiate constitutional
amendments, or that it has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A.
No. 6735, a petition for initiative on the Constitution must be signed by at least
12% of the total number of registered voters of which every legislative district
is represented by at least 3% of the registered voters therein. The Delfin
Petition does not contain signatures of the required number of voters. Delfin
himself admits that he has not yet gathered signatures and that the purpose of
his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed
validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after
its filing. The petition then is the initiatory pleading. Nothing before its filing is
cognizable by the COMELEC, sitting en banc. The only participation of the
COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition; (2) to issue through its Election Records
[63]

and Statistics Office a certificate on the total number of registered voters in

each legislative district; (3) to assist, through its election registrars, in the
[64]

establishment of signature stations; and (4) to verify, through its election

[65]

registrars, the signatures on the basis of the registry list of voters, voters
affidavits, and voters identification cards used in the immediately preceding
election.[66]
 Since the Delfin Petition is not the initiatory petition under R.A. No. 6735
and COMELEC Resolution No. 2300, it cannot be entertained or given
cognizance of by the COMELEC. The latter knew that the petition does not fall
under any of the actions or proceedings under the COMELEC Rules of
Procedure or under Resolution No. 2300, for which reason it did not assign to
the petition a docket number. Hence, the said petition was merely entered as
UND, meaning, undocketed. That petition was nothing more than a mere
scrap of paper, which should not have been dignified by the Order of 6
December 1996, the hearing on 12 December 1996, and the order directing
Delfin and the oppositors to file their memoranda or oppositions. In so
dignifying it, the COMELEC acted without jurisdiction or with grave abuse of
discretion and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the
proposal to lift the term limits of the elective national and local officials is
an amendment to, and not a revisionof, the Constitution is rendered
unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be

permanently enjoined from entertaining or taking cognizance of any petition
for initiative on amendments on the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to
the Constitution should no longer be kept in the cold; it should be given flesh
and blood, energy and strength.Congress should not tarry any longer in
complying with the constitutional mandate to provide for the implementation of
the right of the people under that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative
on amendments to the Constitution, and to have failed to provide sufficient
standard for subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the
Commission on Elections prescribing rules and regulations on the conduct of
initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made
permanent as against the Commission on Elections, but is LIFTED against
private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
 [G.R. No. 118295. May 2, 1997]

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as

members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and
HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES
UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION,
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES,
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE
RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG
KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various
taxpayers and as non-governmental organizations, petitioners,
vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-
SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO
BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE
LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO,
BLAS OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON
REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE
WEBB, in their respective capacities as members of the
Philippine Senate who concurred in the ratification by the
President of the Philippines of the Agreement Establishing the
World Trade Organization; SALVADOR ENRIQUEZ, in his
capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of
Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in
his capacity as Executive Secretary, respondents.

DECISION
PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization,

abetted by the membership thereto of the vast majority of countries has
revolutionized international business and economic relations amongst
states. It has irreversibly propelled the world towards trade liberalization and
economic globalization. Liberalization, globalization, deregulation and
privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the
heretofore traditional modes of promoting and protecting national economies
like tariffs, export subsidies, import quotas, quantitative restrictions, tax
exemptions and currency controls. Finding market niches and becoming the
best in specific industries in a market-driven and export-oriented global
scenario are replacing age-old beggar-thy-neighbor policies that unilaterally
protect weak and inefficient domestic producers of goods and services. In the
words of Peter Drucker, the well-known management guru, Increased
participation in the world economy has become the key to domestic economic
growth and prosperity.

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the

Second World War, plans for the establishment of three multilateral
institutions -- inspired by that grand political body, the United Nations -- were
discussed at Dumbarton Oaks and Bretton Woods. The first was the World
Bank (WB) which was to address the rehabilitation and reconstruction of war-
ravaged and later developing countries; the second, the International
Monetary Fund (IMF) which was to deal with currency problems; and the third,
the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies
that invite challenge, even retaliation, from other states. However, for a variety
of reasons, including its non-ratification by the United States, the ITO, unlike
the IMF and WB, never took off. What remained was only GATT -- the
General Agreement on Tariffs and Trade. GATT was a collection of treaties
governing access to the economies of treaty adherents with no
institutionalized body administering the agreements or dependable system of
dispute settlement.
After half a century and several dizzying rounds of negotiations, principally
the Kennedy Round, the Tokyo Round and the Uruguay Round, the world
finally gave birth to that administering body -- the World Trade Organization --
with the signing of the Final Act in Marrakesh, Morocco and the ratification of
the WTO Agreement by its members. [1]

Like many other developing countries, the Philippines joined WTO as a

founding member with the goal, as articulated by President Fidel V. Ramos in
two letters to the Senate (infra), of improving Philippine access to foreign
markets, especially its major trading partners, through the reduction of tariffs
on its exports, particularly agricultural and industrial products. The
President also saw in the WTO the opening of new opportunities for the
services sector x x x, (the reduction of) costs and uncertainty associated with
exporting x x x, and (the attraction of) more investments into the
country. Although the Chief Executive did not expressly mention it in his letter,
the Philippines - - and this is of special interest to the legal profession - - will
benefit from the WTO system of dispute settlement by judicial adjudication
through the independent WTO settlement bodies called (1) Dispute
Settlement Panels and (2) Appellate Tribunal.Heretofore, trade disputes were
settled mainly through negotiations where solutions were arrived at frequently
on the basis of relative bargaining strengths, and where naturally, weak and
underdeveloped countries were at a disadvantage.

The Petition in Brief

 Arguing mainly (1) that the WTO requires the Philippines to place
nationals and products of member-countries on the same footing as Filipinos
and local products and (2) that the WTO intrudes, limits and/or impairs the
constitutional powers of both Congress and the Supreme Court, the instant
petition before this Court assails the WTO Agreement for violating the
mandate of the 1987 Constitution to develop a self-reliant and independent
national economy effectively controlled by Filipinos x x x (to) give preference
to qualified Filipinos (and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine
participation in worldwide trade liberalization and economic
globalization? Does it prescribe Philippine integration into a global economy
that is liberalized, deregulated and privatized? These are the main questions
raised in this petition for certiorari, prohibition and mandamus under Rule 65
of the Rules of Court praying (1) for the nullification, on constitutional grounds,
of the concurrence of the Philippine Senate in the ratification by the President
of the Philippines of the Agreement Establishing the World Trade Organization
(WTO Agreement, for brevity) and (2) for the prohibition of its implementation
and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various
executive offices concerned therewith. This concurrence is embodied in
Senate Resolution No. 97, dated December 14, 1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of

the Department of Trade and Industry (Secretary Navarro, for brevity),
representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act, Secretary Navarro on behalf of the Republic of
[2]

the Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement in
accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a

letter dated August 11, 1994 from the President of the Philippines, stating [3]

among others that the Uruguay Round Final Act is hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution.
On August 13, 1994, the members of the Philippine Senate received
another letter from the President of the Philippines likewise dated August 11,
[4]

1994, which stated among others that the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on Commitments in
Financial Services are hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution entitled
Concurring in the Ratification of the Agreement Establishing the World Trade
Organization.[5]

On December 14, 1994, the Philippine Senate adopted Resolution No. 97

which Resolved, as it is hereby resolved, that the Senate concur, as it hereby
concurs, in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization. The text of the WTO
[6]

Agreement is written on pages 137 et seq. of Volume I of the 36-

volume Uruguay Round of Multilateral Trade Negotiations and includes
various agreements and associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994

Agreement on Agriculture

Agreement on the Application of Sanitary and

Phytosanitary Measures

Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the General

Agreement on Tariffs and Trade 1994

Agreement on Implementation of Article VII of the General on

Tariffs and Trade 1994

Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating Measures

Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing the Settlement

of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed the [7]

Instrument of Ratification, declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the

Republic of the Philippines, after having seen and considered the aforementioned
Agreement Establishing the World Trade Organization and the agreements and
associated legal instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the same and every Article and Clause
thereof.

To emphasize, the WTO Agreement ratified by the President of the

Philippines is composed of the Agreement Proper and the associated legal
instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies
not only the WTO Agreement (and its integral annexes aforementioned) but
also (1) the Ministerial Declarations and Decisions and (2) the Understanding
on Commitments in Financial Services. In his Memorandum dated May 13,
1996, the Solicitor General describes these two latter documents as follows:
[8]

The Ministerial Decisions and Declarations are twenty-five declarations and decisions
on a wide range of matters, such as measures in favor of least developed countries,
notification procedures, relationship of WTO with the International Monetary Fund
(IMF), and agreements on technical barriers to trade and on dispute settlement.

The Understanding on Commitments in Financial Services dwell on, among other

things, standstill or limitations and qualifications of commitments to existing non-
conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial service.

On December 29, 1994, the present petition was filed. After careful
deliberation on respondents comment and petitioners reply thereto, the Court
resolved on December 12, 1995, to give due course to the petition, and the
parties thereafter filed their respective memoranda. The Court also requested
the Honorable Lilia R. Bautista, the Philippine Ambassador to the United
Nations stationed in Geneva, Switzerland, to submit a paper, hereafter
referred to as Bautista Paper, for brevity, (1) providing a historical
[9]

background of and (2) summarizing the said agreements.

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider
the case submitted for resolution. In a Compliance dated September 16, 1996,
the Solicitor General submitted a printed copy of the 36-volume Uruguay
Round of Multilateral Trade Negotiations, and in another Compliance dated
October 24, 1996, he listed the various bilateral or multilateral treaties or
international instruments involving derogation of Philippine
sovereignty. Petitioners, on the other hand, submitted their Compliance dated
January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the

issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the

deliberations and voting leading to the concurrence are estopped from
impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade

Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and
12, Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World Trade

Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;

E. Whether provisions of the Agreement Establishing the World Trade

Organization interfere with the exercise of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse of

discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
 G. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they concurred
only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the
Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents

synthesized the several issues raised by petitioners into the following: [10]

1. Whether or not the provisions of the Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate in the ratification by the President of
the Philippines of the Agreement establishing the World Trade Organization implied
rejection of the treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented by
petitioners, the Solicitor General has effectively ignored three, namely: (1)
whether the petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada
and Anna Dominique Coseteng) are estopped from joining this suit; and (3)
whether the respondent-members of the Senate acted in grave abuse of
discretion when they voted for concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:

(1) The political question issue -- being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case -
- was deliberated upon by the Court and will thus be ruled upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in respondents favor, will not cause the petitions
dismissal as there are petitioners other than the two senators, who are not vulnerable
to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues raised
by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents
did not question the locus standi of petitioners. Hence, they are also deemed
to have waived the benefit of such issue. They probably realized that grave
constitutional issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that transcendental public
interest requires that the substantive issues be met head on and decided on
the merits, rather than skirted or deflected by procedural matters. [11]

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF
THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON
EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. Once a controversy as to the
[12]

application or interpretation of a constitutional provision is raised before this

Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. [13]

The jurisdiction of this Court to adjudicate the matters raised in the

[14]

petition is clearly set out in the 1987 Constitution, as follows:

[15]

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the government.

The foregoing text emphasizes the judicial departments duty and power to
strike down grave abuse of discretion on the part of any branch or
instrumentality of government including Congress. It is an innovation in our
political law. As explained by former Chief Justice Roberto Concepcion, the
[16] [17]

judiciary is the final arbiter on the question of whether or not a branch of

government or any of its officials has acted without jurisdiction or in excess of
jurisdiction or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction. This is not only a judicial power but a duty
to pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases, it will [18]

not shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it
in appropriate cases, committed by any officer, agency, instrumentality or
department of the government.
As the petition alleges grave abuse of discretion and as there is no other
plain, speedy or adequate remedy in the ordinary course of law, we have no
hesitation at all in holding that this petition should be given due course and the
vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies
to raise constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this
Court will not review the wisdom of the decision of the President and the
Senate in enlisting the country into the WTO, or pass upon the merits of trade
liberalization as a policy espoused by said international body. Neither will it
rule on the propriety of the governments economic policy of
reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other
import/trade barriers. Rather, it will only exercise its constitutional duty to
determine whether or not there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the Senate in ratifying
the WTO Agreement and its three annexes.

Second Issue: The WTO Agreement and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the
Constitution mandating economic nationalism are violated by the so-called
parity provisions and national treatment clauses scattered in various parts not
only of the WTO Agreement and its annexes but also in the Ministerial
Decisions and Declarations and in the Understanding on Commitments in
Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19,
Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are
worded as follows:

Article II

DECLARATION OF PRINCIPLES AND STATE POLICIES

xx xx xx xx

Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
 xx xx xx xx

Article XII

NATIONAL ECONOMY AND PATRIMONY

xx xx xx xx

Sec. 10. x x x. The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xx xx xx xx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.

Petitioners aver that these sacred constitutional principles are desecrated

by the following WTO provisions quoted in their memorandum: [19]

a) In the area of investment measures related to trade in goods (TRIMS, for

brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994. no

Member shall apply any TRIM that is inconsistent with the provisions of
Article III or Article XI of GATT 1994.

2. An Illustrative list of TRIMS that are inconsistent with the obligations of

general elimination of quantitative restrictions provided for in paragraph I of
Article XI of GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment

provided for in paragraph 4 of Article III of GATT 1994 include those
which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require:
 (a) the purchase or use by an enterprise of products of domestic origin or from
any domestic source, whether specified in terms of particular products, in
terms of volume or value of products, or in terms of proportion of volume
or value of its local production; or

(b) that an enterprises purchases or use of imported products be limited to an

amount related to the volume or value of local products that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of

quantitative restrictions provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or enforceable under domestic laws or
under administrative rulings, or compliance with which is necessary to obtain
an advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local

production that it exports;

(b) the importation by an enterprise of products used in or related to its local

production by restricting its access to foreign exchange inflows attributable
to the enterprise; or

(c) the exportation or sale for export specified in terms of particular products,
in terms of volume or value of products, or in terms of a preparation of
volume or value of its local production. (Annex to the Agreement on
Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal
Documents, p.22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that
accorded to like products of national origin in respect of laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use. the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively on the
economic operation of the means of transport and not on the nationality of the
product. (Article III, GATT 1947, as amended by the Protocol Modifying Part II, and
Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph
1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round,
Legal Instruments p.177, emphasis supplied).

b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):

Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432
(emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

 National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than it accords to its
own like services and service suppliers.

2. A Member may meet the requirement of paragraph I by according to

services and service suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be

less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII, General Agreement
on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).

It is petitioners position that the foregoing national treatment and parity

provisions of the WTO Agreement place nationals and products of member
countries on the same footing as Filipinos and local products, in contravention
of the Filipino First policy of the Constitution. They allegedly render
meaningless the phrase effectively controlled by Filipinos. The constitutional
conflict becomes more manifest when viewed in the context of the clear duty
imposed on the Philippines as a WTO member to ensure the conformity of its
laws, regulations and administrative procedures with its obligations as
provided in the annexed agreements. Petitioners further argue that these
[20]

provisions contravene constitutional limitations on the role exports play in

national development and negate the preferential treatment accorded to
Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1)
that such Charter provisions are not self-executing and merely set out general
policies; (2) that these nationalistic portions of the Constitution invoked by
petitioners should not be read in isolation but should be related to other
relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read
properly, the cited WTO clauses do not conflict with the Constitution; and (4)
that the WTO Agreement contains sufficient provisions to protect developing
countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.

Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a declaration of principles

and state policies. The counterpart of this article in the 1935 Constitution is [21]

called the basic political creed of the nation by Dean Vicente Sinco. These [22]

principles in Article II are not intended to be self-executing principles ready for

enforcement through the courts. They are used by the judiciary as aids or as
[23]

guides in the exercise of its power of judicial review, and by the legislature in
its enactment of laws. As held in the leading case of Kilosbayan, Incorporated
vs. Morato, the principles and state policies enumerated in Article II and
[24]

some sections of Article XII are not self-executing provisions, the disregard of
which can give rise to a cause of action in the courts.They do not embody
judicially enforceable constitutional rights but guidelines for legislation.
In the same light, we held in Basco vs. Pagcor that broad constitutional
[25]

principles need legislative enactments to implement them, thus:

On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12

(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article
XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely statements of principles and policies. As
such, they are basically not self-executing, meaning a law should be passed by
Congress to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing

principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legislature. If the executive and the legislature
failed to heed the directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of

broad constitutional principles are sourced from basic considerations of due
process and the lack of judicial authority to wade into the uncharted ocean of
social and economic policy making. Mr. Justice Florentino P. Feliciano in his
concurring opinion in Oposa vs. Factoran, Jr., explained these reasons as
[26]

follows:

My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right -- a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution -- that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment granting all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity so
to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a

cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons.One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration -- where a specific violation of law or

applicable regulation is not alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second paragraph of Section 1 of
Article VIII of the Constitution which reads:

Section 1. x x x

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphases supplied)

When substantive standards as general as the right to a balanced and healthy ecology
and the right to health are combined with remedial standards as broad ranging as a
grave abuse of discretion amounting to lack or excess of jurisdiction, the result will
be, it is respectfully submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to special technical competence
and experience and professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments -- the legislative and
executive departments -- must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the courts
should intervene.

Economic Nationalism Should Be Read with Other Constitutional

Mandates to Attain Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying
down general principles relating to the national economy and patrimony,
should be read and understood in relation to the other sections in said article,
especially Secs. 1 and 13 thereof which read:

Section 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.

The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. x x x

xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals
of national economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by
the nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of
economic nationalism (1) by expressing preference in favor of qualified
Filipinos in the grant of rights, privileges and concessions covering the
national economy and patrimony and in the use of Filipino labor, domestic
[27]

materials and locally-produced goods; (2) by mandating the State to adopt

measures that help make them competitive; and (3) by requiring the State to
[28]

develop a self-reliant and independent national economy effectively controlled

by Filipinos. In similar language, the Constitution takes into account the
[29]

realities of the outside world as it requires the pursuit of a trade policy that
serves the general welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity; and speaks of industries
[30]

which are competitive in both domestic and foreign markets as well as of the
protection of Filipino enterprises against unfair foreign competition and trade
practices.
It is true that in the recent case of Manila Prince Hotel vs. Government
Service Insurance System, et al., this Court held that Sec. 10, second par.,
[31]

Art. XII of the 1987 Constitution is a mandatory, positive command which is

complete in itself and which needs no further guidelines or implementing laws
or rules for its enforcement. From its very words the provision does not require
any legislation to put it in operation. It is per se judicially
enforceable. However, as the constitutional provision itself states, it is
enforceable only in regard to the grants of rights, privileges and concessions
covering national economy and patrimony and not to every aspect of trade
and commerce. It refers to exceptions rather than the rule. The issue here is
not whether this paragraph of Sec. 10 of Art. XII is self-executing or
not. Rather, the issue is whether, as a rule, there are enough balancing
provisions in the Constitution to allow the Senate to ratify the Philippine
concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino
goods, services, labor and enterprises, at the same time, it recognizes the
need for business exchange with the rest of the world on the bases of equality
and reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. In other words, the
[32]

Constitution did not intend to pursue an isolationist policy. It did not shut out
foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the country, it does not prohibit
them either. In fact, it allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is unfair.

WTO Recognizes Need to Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some
built-in advantages to protect weak and developing economies, which
comprise the vast majority of its members. Unlike in the UN where major
states have permanent seats and veto powers in the Security Council, in the
WTO, decisions are made on the basis of sovereign equality, with each
members vote equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial

Conference and the General Council shall be taken by the majority of the votes cast,
except in cases of interpretation of the Agreement or waiver of the obligation of a
member which would require three fourths vote. Amendments would require two
thirds vote in general. Amendments to MFN provisions and the Amendments
provision will require assent of all members. Any member may withdraw from the
Agreement upon the expiration of six months from the date of notice of withdrawals. [33]

Hence, poor countries can protect their common interests more effectively
through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to
push their economic agenda more decisively than outside the
Organization. This is not merely a matter of practical alliances but a
negotiating strategy rooted in law. Thus, the basic principles underlying the
WTO Agreement recognize the need of developing countries like the
Philippines to share in the growth in international trade commensurate with
the needs of their economic development. These basic principles are found in
the preamble of the WTO Agreement as follows:
[34]

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their respective needs and concerns at
different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure a share
in the growth in international trade commensurate with the needs of their economic
development,

Being desirous of contributing to these objectives by entering into reciprocal and

mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in
international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral

trading system encompassing the General Agreement on Tariffs and Trade, the results
of past trade liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, x x x. (underscoring supplied.)

Specific WTO Provisos Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent
with the foregoing basic principles, the WTO Agreement grants developing
countries a more lenient treatment, giving their domestic industries some
protection from the rush of foreign competition. Thus, with respect to tariffs in
general, preferential treatment is given to developing countries in terms of
the amount of tariff reduction and the period within which the reduction is to be
spread out. Specifically, GATT requires an average tariff reduction rate of
36% for developed countries to be effected within a period of six (6)
years while developing countries -- including the Philippines -- are required to
effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to
reduce domestic support to agricultural products by 20% over six (6) years, as
compared to only 13% for developing countries to be effected within ten (10)
years.
In regard to export subsidy for agricultural products, GATT requires
developed countries to reduce their budgetary outlays for export subsidy by
36% and export volumes receiving export subsidy by 21% within a period of
six (6) years. For developing countries, however, the reduction rate is
only two-thirds of that prescribed for developed countries and a longer period
of ten (10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures,
countervailing measures and safeguards against import surges. Where local
businesses are jeopardized by unfair foreign competition, the Philippines can
avail of these measures. There is hardly therefore any basis for the statement
that under the WTO, local industries and enterprises will all be wiped out and
that Filipinos will be deprived of control of the economy. Quite the contrary,
the weaker situations of developing nations like the Philippines have been
taken into account; thus, there would be no basis to say that in joining the
WTO, the respondents have gravely abused their discretion.True, they have
made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the ground
of grave abuse of discretion, simply because we disagree with it or simply
because we believe only in other economic policies. As earlier stated, the
Court in taking jurisdiction of this case will not pass upon the advantages and
disadvantages of trade liberalization as an economic policy. It will only
perform its constitutional duty of determining whether the Senate committed
grave abuse of discretion.

Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a self-reliant and independent

national economy does not necessarily rule out the entry of foreign
[35]

investments, goods and services. It contemplates neither economic seclusion

nor mendicancy in the international community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly

aware of overdependence on external assistance for even its most basic needs. It does
not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic industries as in the
development of natural resources and public utilities.
[36]

The WTO reliance on most favored nation, national treatment, and trade
without discrimination cannot be struck down as unconstitutional as in fact
they are rules of equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy based on equality and
reciprocity, the fundamental law encourages industries that are competitive
[37]

in both domestic and foreign markets, thereby demonstrating a clear policy

against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the
foreign markets. Indeed, Filipino managers and Filipino enterprises have
shown capability and tenacity to compete internationally. And given a free
trade environment, Filipino entrepreneurs and managers in Hongkong
have demonstrated the Filipino capacity to grow and to prosper against the
best offered under a policy of laissez faire.

Constitution Favors Consumers, Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any
business or enterprise, nor does it contain any specific pronouncement that
Filipino companies should be pampered with a total
proscription of foreign competition. On the other hand, respondents claim that
WTO/GATT aims to make available to the Filipino consumer the best goods
and services obtainable anywhere in the world at the most reasonable
prices. Consequently, the question boils down to whether WTO/GATT will
favor the general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general
welfare) to reality?
 Will WTO/GATT succeed in promoting the Filipinos general welfare
because it will -- as promised by its promoters -- expand the countrys exports
and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality
products at the most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy
makers, for which they are answerable to our people during appropriate
electoral exercises. Such questions and the answers thereto are not subject to
judicial pronouncements based on grave abuse of discretion.

Constitution Designed to Meet Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the
Constitution was drafted and ratified in 1987. That does not mean however
that the Charter is necessarily flawed in the sense that its framers might not
have anticipated the advent of a borderless world of business. By the same
token, the United Nations was not yet in existence when the 1935 Constitution
became effective. Did that necessarily mean that the then Constitution might
not have contemplated a diminution of the absoluteness of sovereignty when
the Philippines signed the UN Charter, thereby effectively surrendering part of
its control over its foreign relations to the decisions of various UN organs like
the Security Council?
It is not difficult to answer this question. Constitutions are designed to
meet not only the vagaries of contemporary events. They should be
interpreted to cover even future and unknown circumstances. It is to the credit
of its drafters that a Constitution can withstand the assaults of bigots and
infidels but at the same time bend with the refreshing winds of change
necessitated by unfolding events. As one eminent political law writer and
respected jurist explains:
[38]

The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and framework only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly in the crucible of Filipino minds and hearts, where it will in time
develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that (e)ach Member shall ensure the
conformity of its laws, regulations and administrative procedures with its
obligations as provided in the annexed Agreements. Petitioners maintain that
[39]
this undertaking unduly limits, restricts and impairs Philippine sovereignty,
specifically the legislative power which under Sec. 2, Article VI of the 1987
Philippine Constitution is vested in the Congress of the Philippines. It is an
assault on the sovereign powers of the Philippines because this means that
Congress could not pass legislation that will be good for our national interest
and general welfare if such legislation will not conform with the WTO
Agreement, which not only relates to the trade in goods x x x but also to the
flow of investments and money x x x as well as to a whole slew of agreements
on socio-cultural matters x x x. [40]

More specifically, petitioners claim that said WTO proviso derogates from
the power to tax, which is lodged in the Congress. And while the Constitution
[41]

allows Congress to authorize the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts, such
authority is subject to specified limits and x x x such limitations and restrictions
as Congress may provide, as in fact it did under Sec. 401 of the Tariff and
[42]

Customs Code.

Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue. However, while sovereignty
has traditionally been deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a member of the family
of nations. Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its Declaration of
Principles and State Policies, the Constitution adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity, with all
nations." By the doctrine of incorporation, the country is bound by generally
[43]

accepted principles of international law, which are considered to be

automatically part of our own laws. One of the oldest and most fundamental
[44]

rules in international law is pacta sunt servanda -- international agreements

must be performed in good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties x x x. A state
which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment
of the obligations undertaken. [45]

By their inherent nature, treaties really limit or restrict the absoluteness of

sovereignty. By their voluntary act, nations may surrender some aspects of
their state power in exchange for greater benefits granted by or derived from a
convention or pact. After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute rights. Thus, treaties
have been used to record agreements between States concerning such
widely diverse matters as, for example, the lease of naval bases, the sale or
cession of territory, the termination of war, the regulation of conduct of
hostilities, the formation of alliances, the regulation of commercial relations,
the settling of claims, the laying down of rules governing conduct in peace and
the establishment of international organizations. The sovereignty of a state
[46]

therefore cannot in fact and in reality be considered absolute. Certain

restrictions enter into the picture: (1) limitations imposed by the very nature of
membership in the family of nations and (2) limitations imposed by treaty
stipulations. As aptly put by John F. Kennedy, Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is over. The age of
interdependence is here. [47]

UN Charter and Other Treaties Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the
concept of sovereignty as auto-limitation.47-A Under Article 2 of the UN
Charter, (a)ll members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking
preventive or enforcement action. Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its
advisory opinion of July 20, 1961, the International Court of Justice held that
money used by the United Nations Emergency Force in the Middle East and
in the Congo were expenses of the United Nations under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress
is restricted in its power to appropriate. It is compelled to appropriate funds
whether it agrees with such peace-keeping expenses or not. So too, under
Article 105 of the said Charter, the UN and its representatives enjoy
diplomatic privileges and immunities, thereby limiting again the exercise of
sovereignty of members within their own territory. Another example: although
sovereign equality and domestic jurisdiction of all members are set forth as
underlying principles in the UN Charter, such provisos are however subject to
enforcement measures decided by the Security Council for the maintenance
of international peace and security under Chapter VII of the Charter. A final
example: under Article 103, (i)n the event of a conflict between the obligations
of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the
present charter shall prevail, thus unquestionably denying the Philippines -- as
a member -- the sovereign power to make a choice as to which of conflicting
obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other
international pacts -- both bilateral and multilateral -- that involve limitations on
Philippine sovereignty. These are enumerated by the Solicitor General in his
Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where
the Philippines agreed, among others, to exempt from tax, income received in
the Philippines by, among others, the Federal Reserve Bank of the United
States, the Export/Import Bank of the United States, the Overseas Private
 Investment Corporation of the United States. Likewise, in said convention,
wages, salaries and similar remunerations paid by the United States to its
citizens for labor and personal services performed by them as employees or
officials of the United States are exempt from income tax by the Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the avoidance
of double taxation with respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.

(d) Bilateral convention with the French Republic for the avoidance of double
taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes
aircrafts of South Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar
duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and
Korean air carriers under separate air service agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines exempted Israeli nationals from the requirement of obtaining
transit or visitor visas for a sojourn in the Philippines not exceeding 59 days.

(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding 59
days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents
can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes and
related charges.

(k) Multilateral Convention on the Law of Treaties. In this convention, the

Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.

(l) Declaration of the President of the Philippines accepting compulsory

jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of a
treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.
 In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers of taxation, eminent domain and police
power. The underlying consideration in this partial surrender of sovereignty is
the reciprocal commitment of the other contracting states in granting the same
privilege and immunities to the Philippines, its officials and its citizens. The
same reciprocity characterizes the Philippine commitments under WTO-
GATT.

International treaties, whether relating to nuclear disarmament, human rights, the

environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of the
reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, well-
defined substantive norms and objective dispute resolution procedures reduce the risks
of larger countries exploiting raw economic power to bully smaller countries, by
subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success
to the smaller countrys market. [48]

The point is that, as shown by the foregoing treaties, a portion of

sovereignty may be waived without violating the Constitution, based on the
rationale that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of x x
x cooperation and amity with all nations.

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and

Basic Principles of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) intrudes on the power of the Supreme Court to
[49]

promulgate rules concerning pleading, practice and procedures. [50]

To understand the scope and meaning of Article 34, TRIPS, it will be [51]

fruitful to restate its full text as follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights
of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a
patent is a process for obtaining a product, the judicial authorities shall have the
authority to order the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members shall provide,
in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to
the contrary, be deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by
the process and the owner of the patent has been unable through
reasonable efforts to determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph
(b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants

in protecting their manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable

(note the words in the absence of proof to the contrary) presumption that a
product shown to be identical to one produced with the use of a patented
process shall be deemed to have been obtained by the (illegal) use of the said
patented process, (1) where such product obtained by the patented product is
new, or (2) where there is substantial likelihood that the identical product was
made with the use of the said patented process but the owner of the patent
could not determine the exact process used in obtaining such identical
product. Hence, the burden of proof contemplated by Article 34 should
actually be understood as the duty of the alleged patent infringer to overthrow
such presumption. Such burden, properly understood, actually refers to the
burden of evidence (burden of going forward) placed on the producer of the
identical (or fake) product to show that his product was produced without the
use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of
proof since, regardless of the presumption provided under paragraph 1 of
Article 34, such owner still has to introduce evidence of the existence of the
alleged identical product, the fact that it is identical to the genuine one
produced by the patented process and the fact of newness of the genuine
product or the fact of substantial likelihood that the identical product was
made by the patented process.
The foregoing should really present no problem in changing the rules of
evidence as the present law on the subject, Republic Act No. 165, as
amended, otherwise known as the Patent Law, provides a similar presumption
in cases of infringement of patented design or utility model, thus:

SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility

model shall consist in unauthorized copying of the patented design or utility model for
the purpose of trade or industry in the article or product and in the making, using or
selling of the article or product copying the patented design or utility model. Identity
or substantial identity with the patented design or utility model shall constitute
evidence of copying. (underscoring supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a

disputable presumption applies only if (1) the product obtained by the
patented process is NEW or (2) there is a substantial likelihood that the
identical product was made by the process and the process owner has not
been able through reasonable effort to determine the process used. Where
either of these two provisos does not obtain, members shall be free to
determine the appropriate method of implementing the provisions of TRIPS
within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of
the third issue -- derogation of legislative power - will apply to this fourth issue
also. Suffice it to say that the reciprocity clause more than justifies such
intrusion, if any actually exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process and the concept of
adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the adjustment in
legislation and rules of procedure will not be substantial. [52]

Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other
Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and
its annexes -- but not in the other documents referred to in the Final Act,
namely the Ministerial Declaration and Decisions and the Understanding on
Commitments in Financial Services -- is defective and insufficient and thus
constitutes abuse of discretion. They submit that such concurrence in the
WTO Agreement alone is flawed because it is in effect a rejection of the Final
Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend
that the second letter of the President to the Senate which enumerated what
[53]

constitutes the Final Act should have been the subject of concurrence of the
Senate.
A final act, sometimes called protocol de clture, is an instrument which
records the winding up of the proceedings of a diplomatic conference and
usually includes a reproduction of the texts of treaties, conventions,
recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the conference. It is not the treaty itself. It is
[54]

rather a summary of the proceedings of a protracted conference which may

have taken place over several years. The text of the Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations is contained
in just one page in Vol. I of the 36-volume Uruguay Round of Multilateral
[55]

Trade Negotiations. By signing said Final Act, Secretary Navarro as

representative of the Republic of the Philippines undertook:

"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions."

 The assailed Senate Resolution No. 97 expressed concurrence in exactly
what the Final Act required from its signatories, namely, concurrence of the
Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without
need for ratification. They were approved by the ministers by virtue of Article
XXV: 1 of GATT which provides that representatives of the members can
meet to give effect to those provisions of this Agreement which invoke joint
action, and generally with a view to facilitating the operation and furthering the
objectives of this Agreement. [56]

The Understanding on Commitments in Financial Services also approved

in Marrakesh does not apply to the Philippines. It applies only to those 27
Members which have indicated in their respective schedules of commitments
on standstill, elimination of monopoly, expansion of operation of existing
financial service suppliers, temporary entry of personnel, free transfer and
processing of information, and national treatment with respect to access to
payment, clearing systems and refinancing available in the normal course of
business. [57]

On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts, as follows:
[58]

Article II

Scope of the WTO

1. The WTO shall provide the common institutional framework for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2, and

3 (hereinafter referred to as Multilateral Agreements) are integral parts of this
Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4

(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A

(hereinafter referred to as GATT 1994) is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to as GATT 1947).

It should be added that the Senate was well-aware of what it was

concurring in as shown by the members deliberation on August 25,
1994. After reading the letter of President Ramos dated August 11, 1994, the [59]

senators of the Republic minutely dissected what the Senate was concurring
in, as follows: [60]
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization?And on that basis, Senator Tolentino raised a point of order which,
however, he agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until the
question of the submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new... is he making
a new submission which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Taada and later on Senator Tolentino since
they were the ones that raised this question yesterday?

Senator Taada, please.

SEN. TAADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.

SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself. The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with
the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with their
procedures.
In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional procedures
may provide but it is the World Trade Organization Agreement. And if that is the one
that is being submitted now, I think it satisfies both the Constitution and the Final Act
itself.

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO

Agreement, petitioners are invoking this Courts constitutionally imposed duty
to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the Senate in giving
its concurrence therein via Senate Resolution No. 97. Procedurally, a writ
of certiorari grounded on grave abuse of discretion may be issued by the
Court under Rule 65 of the Rules of Court when it is amply shown that
petitioners have no other plain, speedy and adequate remedy in the ordinary
course of law.
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of
[61]

discretion is not enough. It must be grave abuse of discretion as when the

power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law. Failure on the part of the petitioner to
[62]

show grave abuse of discretion will result in the dismissal of the petition. [63]

In rendering this Decision, this Court never forgets that the Senate, whose
act is under review, is one of two sovereign houses of Congress and is thus
entitled to great respect in its actions. It is itself a constitutional body
independent and coordinate, and thus its actions are presumed regular and
done in good faith. Unless convincing proof and persuasive arguments are
presented to overthrow such presumptions, this Court will resolve every doubt
in its favor. Using the foregoing well-accepted definition of grave abuse of
discretion and the presumption of regularity in the Senates processes, this
Court cannot find any cogent reason to impute grave abuse of discretion to
the Senates exercise of its power of concurrence in the WTO Agreement
granted it by Sec. 21 of Article VII of the Constitution.
[64]

It is true, as alleged by petitioners, that broad constitutional principles

require the State to develop an independent national economy effectively
controlled by Filipinos; and to protect and/or prefer Filipino labor, products,
domestic materials and locally produced goods. But it is equally true that such
principles -- while serving as judicial and legislative guides -- are not in
themselves sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate which
mandate the pursuit of a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity and the promotion of industries which are competitive in both
domestic and foreign markets, thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in the exercise of
legislative and judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby making it a
part of the law of the land is a legitimate exercise of its sovereign duty and
power. We find no patent and gross arbitrariness or despotism by reason of
passion or personal hostility in such exercise. It is not impossible to surmise
that this Court, or at least some of its members, may even agree with
petitioners that it is more advantageous to the national interest to strike down
Senate Resolution No. 97. But that is not a legal reason to attribute grave
abuse of discretion to the Senate and to nullify its decision. To do so would
constitute grave abuse in the exercise of our own judicial power and
duty.Ineludably, what the Senate did was a valid exercise of its authority. As
to whether such exercise was wise, beneficial or viable is outside the realm of
judicial inquiry and review. That is a matter between the elected policy makers
and the people. As to whether the nation should join the worldwide march
toward trade liberalization and economic globalization is a matter that our
people should determine in electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership, should this be the political
desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends,
predicts an Asian Renaissance where the East will become the dominant
[65]

region of the world economically, politically and culturally in the next

century. He refers to the free market espoused by WTO as the catalyst in this
coming Asian ascendancy. There are at present about 31 countries including
China, Russia and Saudi Arabia negotiating for membership in the
WTO. Notwithstanding objections against possible limitations on national
sovereignty, the WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade
law. The alternative to WTO is isolation, stagnation, if not economic self-
destruction. Duly enriched with original membership, keenly aware of the
advantages and disadvantages of globalization with its on-line experience,
and endowed with a vision of the future, the Philippines now straddles the
crossroads of an international strategy for economic prosperity and stability in
the new millennium. Let the people, through their duly authorized elected
officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 171396 May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE,
JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO
BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.

x-------------------------------------x

G.R. No. 171409 May 3, 2006

NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171485 May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO

A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND
RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP, Respondents.

x-------------------------------------x

G.R. No. 171483 May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND

SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS
KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171400 May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND
DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.

AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF, Respondents.

x-------------------------------------x

G.R. No. 171424 May 3, 2006

LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-
CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength the use of force cannot make wrongs into rights. In this regard, the
courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their
liberty.

Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: "In cases
involving liberty, the scales of justice should weigh heavily against government and in favor
of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws and
actions that restrict fundamental rights come to the courts "with a heavy presumption against their
constitutional validity."2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria
Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials
of the Government, in their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me
by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever
it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,"
and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution
do hereby declare a State of National Emergency.
She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists the historical enemies of the democratic Philippine
State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments
of the national media;

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance
including hindering the growth of the economy and sabotaging the peoples confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of
the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State and
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the peoples confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of
the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do
hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after
all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021
which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued
on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military officers,
leftist insurgents of the New Peoples Army (NPA), and some members of the political opposition in a
plot to unseat or assassinate President Arroyo.4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to
the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners
counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While
he explained that it is not respondents task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement,
they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show
and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going
to the streets in protest, but also by wearing red bands on our left arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming
in Baguio City. The plot was to assassinate selected targets including some cabinet members and
President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to attend
the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National Peoples Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San
Juan announced through DZRH that the "Magdalos D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP-
Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding
General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a
public statement: "All SAF units are under the effective control of responsible and trustworthy officers
with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
critic, called a U.S. government official about his groups plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of
the Armys elite Scout Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga,
Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would
join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held
on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop
the soldiers because they too, were breaking the chain of command to join the forces foist to unseat
the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the
chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return
to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military
and the police establishments in order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary
movement and the entire people look forward to the possibility in the coming year of accomplishing
its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule
that it will not take much longer to end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing
rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He claimed that with the forces
of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005, it is probable that the Presidents ouster is
nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan
and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O.
No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And
also the directive of the Communist Party of the Philippines ordering its front organizations to join
5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.10

By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the
AFP and the PNP to account for all their men and ensure that the chain of command remains solid
and undivided. To protect the young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities
related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the Presidents mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-
over of facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups
of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-
Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of
converging at the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber
glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used against the protesters marching forward
to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo
de Roxas Street in Makati City.12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal
of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf
S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested
was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation
and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a strong
presence, to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government." The PNP warned that it would take over any media organization that would
not follow "standards set by the government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards and the standards are - if they
would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend a takeover." National Telecommunications
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government
for the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could
not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a
public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.

Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested
while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House of Representatives where the "Batasan
5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency
has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5
were filed with this Court against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged
the CIDGs act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint."
They also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty
one (21) other members of the House of Representatives, including Representatives Satur Ocampo,
Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and
G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in
calling out the armed forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and
G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O.
No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and
418 of Article III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary
and unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is
not really a declaration of Martial Law, petitioners argued that "it amounts to an exercise by the
President of emergency powers without congressional approval." In addition, petitioners asserted
that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised
Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5
are "unconstitutional for being violative of the freedom of expression, including its cognate rights
such as freedom of the press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.

In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate
the peoples right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:

A. PROCEDURAL:
 1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.

171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal
standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple
foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political
authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate
and preserve inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial review.22

But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts
may exercise such power only when the following requisites are present: first, there must be an
actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself.24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible
of judicial resolution. It is "definite and concrete, touching the legal relations of parties having
adverse legal interest;" a real and substantial controversy admitting of specific relief.25 The Solicitor
General refutes the existence of such actual case or controversy, contending that the present
petitions were rendered "moot and academic" by President Arroyos issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26so that a declaration thereon would be of no practical use or value.27 Generally,
courts decline jurisdiction over such case28 or dismiss it on ground of mootness.29

The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be stressed that "an unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution;31second, the exceptional character of the situation and the
paramount public interest is involved;32 third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;33and fourth, the case is capable of
repetition yet evading review.34

All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over
the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect the publics interest, involving
as they do the peoples basic rights to freedom of expression, of assembly and of the press.
Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the
present petitions, the military and the police, on the extent of the protection given by constitutional
guarantees.35 And lastly, respondents contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio
V. Panganibans Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take
into account the Chief Justices very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to
have a more than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question."37 In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in
interest" is "the party who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit."38 Succinctly put, the plaintiffs standing is based on his own
right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a
taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:40 "In matter of mere public right, howeverthe people are the real partiesIt is at
least the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayers suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for
a private individual to invoke the judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila Race Horse
Trainers Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese
League of the Philippines v. Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted the
Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this
Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of "transcendental importance." Pertinent are
the following cases:

(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of
Congress taxing or spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,55that in cases of transcendental importance, the cases must be
settled promptly and definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law
in question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts attitude toward legal
standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a peoples
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a
taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court
reiterated the "direct injury" test with respect to concerned citizens cases involving constitutional
issues. It held that "there must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the Presidents declaration of a state of
rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt.
The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing
Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal
standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran
Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in
the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Taada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the announcement by
the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which
the IBP as an institution or its members may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly
true, is not sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the transcendental importance
of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator
is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not
sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may relax the standing
rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this
very critical matter. The petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases." 1avv phil.net

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that
the President, during his tenure of office or actual incumbency,67 may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the
dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important
duties imposed upon him by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone. Like any other official,
he remains accountable to the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment.69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President
Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the Presidents exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v.
Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government."75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of powers, it shifted
the focus to the system of checks and balances, "under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law, and the authority
to determine whether or not he has so acted is vested in the Judicial Department, which in
this respect, is, in turn, constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the
issue of whether the validity of the imposition of Martial Law is a political or justiciable
question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there
is a need to re-examine the latter case, ratiocinating that "in times of war or national emergency,
the President must be given absolute control for the very life of the nation and the
government is in great peril. The President, it intoned, is answerable only to his conscience,
the People, and God."79

The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at
bar -- echoed a principle similar to Lansang. While the Court considered the Presidents "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed that "this does not prevent
an examination of whether such power was exercised within permissible constitutional limits
or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is
mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies
the authority of the courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized not only "to settle
actual controversies involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." The
latter part of the authority represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the political departments of the
government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test
that "judicial inquiry can go no further than to satisfy the Court not that the Presidents decision
is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual
basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP
1017, is totally bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment
and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group,
their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold
her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for
our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act
according to discretion for the public good, without the proscription of the law and
sometimes even against it."84 But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative
and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the
people have no other remedy in this, as in all other cases where they have no judge on earth,
but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes
of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may,
in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of
the State

It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation,
the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a
moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear
that the peoples first intention is that the State shall not perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely
upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed duration to
avoid perpetuation of the dictatorship.87

John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship."88

Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra constitutional

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little while be disregarded under that
pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying it.89

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem of combining a capacious
reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90

Contemporary political theorists, addressing themselves to the problem of response to emergency

by constitutional democracies, have employed the doctrine of constitutional dictatorship.91 Frederick
M. Watkins saw "no reason why absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established institutions from the danger of
permanent injury in a period of temporary emergency and is followed by a prompt return to
the previous forms of political life."92 He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance: increasing administrative
powers of the executive, while at the same time "imposing limitation upon that
power."93Watkins placed his real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of dictatorship must be relatively
shortDictatorship should always be strictly legitimate in characterFinal authority to
determine the need for dictatorship in any given case must never rest with the dictator
himself"94 and the objective of such an emergency dictatorship should be "strict political
conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a problem of
concentrating power in a government where power has consciously been divided to cope with
situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject
to equally strong limitations as to who shall exercise such powers, when, for how long, and to what
end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency
powers, to wit: "The emergency executive must be appointed by constitutional means i.e., he
must be legitimate; he should not enjoy power to determine the existence of an emergency;
emergency powers should be exercised under a strict time limitation; and last, the objective
of emergency action must be the defense of the constitutional order."97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems presented by emergency.98 Like
Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated

unless it is necessary or even indispensable to the preservation of the State and its
constitutional order

2) the decision to institute a constitutional dictatorship should never be in the hands of the
man or men who will constitute the dictator

3) No government should initiate a constitutional dictatorship without making specific

provisions for its termination
 4) all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements

5) no dictatorial institution should be adopted, no right invaded, no regular procedure

altered any more than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never
be permanent in character or effect

7) The dictatorship should be carried on by persons representative of every part of the

citizenry interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one
should never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which
it was instituted

11) the termination of the crisis must be followed by a complete return as possible to the
political and governmental conditions existing prior to the initiation of the constitutional
dictatorship99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were
one in saying that, "the suggestion that democracies surrender the control of government to
an authoritarian ruler in time of grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator"
is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief
executives administering emergency powers. However used, "constitutional dictatorship" cannot be
divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored
instead the "concept of constitutionalism" articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency

powers, and which is consistent with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon
the substantive powers of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling of government
by an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have consisted not in
the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with "limited" as distinguished from
"weak" government, McIlwain meant government limited to the orderly procedure of law as
opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists - from
Locks "theory of prerogative," to Watkins doctrine of "constitutional dictatorship" and, eventually, to
McIlwains "principle of constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the
1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a
government in the concept of Justice Jacksons "balanced power structure."102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly of power in
times of emergency. Each branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the
same time, it obliges him to operate within carefully prescribed procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,104the US Supreme Court held that "we have not
recognized an overbreadth doctrine outside the limited context of the First Amendment"
(freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:

It remains a matter of no little difficulty to determine when a law may properly be held void on its
face and when such summary action is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from pure speech toward
conduct and that conduct even if expressive falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms,
seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a
person to whom a law may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not before the
Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect
of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes
that an overbroad laws "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine
PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but
on the assumption or prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of
these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever way they might be
decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed
law may be valid. Here, petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and
differ as to its application."110 It is subject to the same principles governing overbreadth doctrine.
For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all
its possible applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."

First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to
the least benign, these are: the calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best
position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. For
this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater
power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the Presidents authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyos authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:

SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.

President Arroyos declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on
the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the States extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It
is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the
President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon
by the executive to assist in the maintenance of law and order, and that, while the emergency lasts,
they must, upon pain of arrest and punishment, not commit any acts which will in any way render
more difficult the restoration of order and the enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente
V. Mendoza,114an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties.
It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the purpose of enabling him
to secure the people from harm and to restore order so that they can enjoy their individual freedoms.
In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a
call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot
be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any
other purpose is a perversion of its nature and scope, and any act done contrary to its command
is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyos calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,115 the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that
all laws are enforced by the officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the Philippines, he will,
among others, "execute its laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of Interior and Local
Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it
arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."

Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was
lifted120 from Former President Marcos Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the

powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally
or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling clause
of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated
in executive orders.

Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.

Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.

Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal

administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance, shall
be embodied in memorandum circulars.

Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.

President Arroyos ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they were
issued by the President in the exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the province
of the Legislature. Section 1, Article VI categorically states that "[t]he legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyos exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the
military to enforce or implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can only order the military,
under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of
the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under
PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x"
but also to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP
1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to
grant the President, without any authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking
of the 1971 Constitutional Convention.122 In effect at the time of its approval was President Marcos
Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense
to take over "the management, control and operation of the Manila Electric Company, the Philippine
Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . .
for the successful prosecution by the Government of its effort to contain, solve and end the present
national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President Arroyos
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency
powers.

This is an area that needs delineation.

A distinction must be drawn between the Presidents authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section 18,
Article VII grants the President such power, hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but
also to "other national emergency." If the intention of the Framers of our Constitution was to
withhold from the President the authority to declare a "state of national emergency" pursuant to
Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could validly declare the existence
of a state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or
business affected with public interest, is a different matter. This requires a delegation from
Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the limitation of the exercise
of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body
cannot delegate a power not reposed upon it. However, knowing that during grave emergencies,
it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of
our Constitution deemed it wise to allow Congress to grant emergency powers to the President,
subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking
over of private business affected with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business affected with public interest," it
refers to Congress, not the President. Now, whether or not the President may exercise such power
is dependent on whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants this
power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article
II which say that "The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the Army and
Navy of the United States.

The order cannot properly be sustained as an exercise of the Presidents military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though "theater of war" be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the Commander-
in-Chief of the Armed Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This is a job for the
nations lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the Presidents
power to see that the laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that "All legislative Powers herein granted
shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII
refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of
"emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in
this definitions are the elements of intensity, variety, and perception.127 Emergencies, as perceived
by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131 This is evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committees definition of "national emergency" which appears in
Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for

example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary
measures are exercised, remains in Congress even in times of crisis.
 "x x x

After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects
and shortcomings, in preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting
laws been surrendered to another department unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of extreme perils more than in normal
circumstances the various branches, executive, legislative, and judicial, given the ability to act, are
called upon to perform the duties and discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business affected
with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected with public interest. Nor
can he determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected with public
interest that should be taken over. In short, the President has no absolute authority to exercise all
the powers of the State under Section 17, Article VII in the absence of an emergency powers act
passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power
I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three
policemen were assigned to guard their office as a possible "source of destabilization." Again, the
basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
"turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted
from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general purpose
and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP
1017 is merely an invocation of the Presidents calling-out power. Its general purpose is to command
the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end
desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens
constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or
ordinance is to be measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing them
have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the Revised Penal Code would have been
declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are
"acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines." They are internal rules issued by the executive officer to his subordinates precisely
for the proper and efficientadministration of law. Such rules and regulations create no relation
except between the official who issues them and the official who receives them.139 They are based
on and are the product of, a relationship in which power is their source, and obedience, their
object.140 For these reasons, one requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution,
and which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of
terrorism" is still an amorphous and vague concept. Congress has yet to enact a law defining and
punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts
not only our country, but the international community as well. The following observations are quite
apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become one
of the basic slogans when it comes to the justification of the use of force against certain states and
against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions or threats of the use of force as the most
recent by the United States against Iraq consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One countrys terrorist is another countrys freedom
fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may
further be demonstrated by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to
mention only a few, were originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those
acts from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate "terrorism" with any violent act by
non-state groups against civilians, state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious groups within a state is
concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) which is a terrorist group for Israel and a liberation movement for Arabs and
Muslims the Kashmiri resistance groups who are terrorists in the perception of India, liberation
fighters in that of Pakistan the earlier Contras in Nicaragua freedom fighters for the United
States, terrorists for the Socialist camp or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a group of freedom fighters
for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any
way because of opposing political interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and
the same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-
versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these conflicting interests of sovereign states that determine in each and every
instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international
affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! has become even
more serious in the present global power constellation: one superpower exercises the decisive role
in the Security Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of
the police or military. An illustration is when a group of persons are merely engaged in a drinking
spree. Yet the military or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the same as such
and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do
not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is President Arroyo
alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these
can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus, this Court
declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond
what are necessary and appropriate to suppress and prevent lawless violence, the limitation of
their authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses, papers
and effects against unreasonable search and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized."142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate clothed with power to
issue or refuse to issue search warrants or warrants of arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of
the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even
if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also
stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the rally.147

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress of grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right
of speech. As in the case of freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that Congress has a right
to prevent. In other words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities except, of course, if the
assembly is intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their
right to peaceful assembly. They were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought.
Even the Solicitor General, during the oral argument, failed to justify the arresting officers conduct.
In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings
cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the meeting was held but as
to its purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it
is a different matter when the State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely
on the basis of Malacaangs directive canceling all permits previously issued by local government
units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the
principle that "freedom of assembly is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that an
assembly presents a clear and present danger that the State may deny the citizens right to exercise
it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the
distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.150 The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a
persons right is restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribunes offices were searched without warrant;second, the
police operatives seized several materials for publication; third, the search was conducted at about
1:00 o clock in the morning of February 25, 2006; fourth, the search was conducted in the absence
of any official of the Daily Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a strong presence, to tell
media outlets not to connive or do anything that would help the rebels in bringing down this
government." Director General Lomibao further stated that "if they do not follow the standards
and the standards are if they would contribute to instability in the government, or if they do
not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend
a takeover." National Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times when the national security is
threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in
the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of the
latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless
the property is on the person or in the place ordered to be searched, in which case a direction may
be inserted that it be served at any time of the day or night. All these rules were violated by the
CIDG operatives.

Not only that, the search violated petitioners freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of
the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and
"We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no more and no
less than what he is permitted to say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of
its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional
right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto
should always be obsta principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribunes offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get
the clippings. Is that not in admission of the admissibility of these clippings that were taken from the
Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those
past issues. So why do you have to go there at 1 oclock in the morning and without any search
warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based
on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that
the police could go and inspect and gather clippings from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say this, we do
not condone this. If the people who have been injured by this would want to sue them, they
can sue and there are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you
said, a misapplication of the law. These are acts of the police officers, that is their responsibility.157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
"should result in no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by
the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizens rights under the Constitution, this Court has to declare such acts unconstitutional
and illegal.

In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is
considered an integral part of this ponencia.
 SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal
acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or
one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006
that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be "evaded;" they must
now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However,
PP 1017s extraneous provisions giving the President express or implied power (1) to issue decrees;
(2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as
Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard that the military and the police should take only the
"necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFPs authority in carrying out this portion of
G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the
rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of
PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal Informations
have not been presented before this Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are
ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in breadth and intensity from
normal times, yet they should not be arbitrary as to unduly restrain our peoples liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing
political philosophies is that, it is possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding
the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned public utility or business
affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet
been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest
of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these
petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP
880; the imposition of standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for publication and
other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.
G.R. No. 169838 April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose

Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents.

x---------------------------------x

G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo,
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito
Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District
(MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

x---------------------------------x

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO
C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers
of the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No.
169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently dispersed by the police. They further
assert that on October 5, 2005, a group they participated in marched to Malacaang to protest
issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They further allege that on October 6,
2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa
Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5,
6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies
under the "no permit, no rally" policy and the CPR policy recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of
the State. To this end, the State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.

(d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.

Sec. 4. Permit when required and when not required. A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Sec. 5. Application requirements. All applications for a permit shall comply with the following
guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.

Sec. 6. Action to be taken on the application.

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-
four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be immediately
executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit; |avv phi| .net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in
the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;
 (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,

bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by

the use of a motor vehicle, its horns and loud sound systems.

Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined in
the immediately preceding section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;
 (c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.

Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders, ordinances
or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended,
or modified accordingly.

Sec. 18. Effectivity. This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21,
2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:

Malacaang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the
land as well as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of
a democratic society.

The Presidents call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless
of the presence or absence of a clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The words "lawful cause," "opinion,"
"protesting or influencing" suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it puts
a condition for the valid exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly
and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits provided are unreasonable: First,
allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as
certain events require instant public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before
the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.

Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila
City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila
Police District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had
been "injured, arrested or detained because of the CPR," and that "those arrested stand to
be charged with violating Batas Pambansa [No.] 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the
time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test
for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6
 3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the
statement of the public assemblys time, place and manner of conduct. It entails traffic re-
routing to prevent grave public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rallys program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of
B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time,
place and manner of holding public assemblies and the law passes the test for such
regulation, namely, these regulations need only a substantial governmental interest to
support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the
authority to exercise police power to meet "the demands of the common good in terms of
traffic decongestion and public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence
that the public assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call it
a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R.
No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power
to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and
present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation
because it covers all rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)

and 14(a) thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration
of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response

(CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

 (c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were approved
and/or noted by the Court:

1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of
their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no
longer be used as a legal term inasmuch as, according to respondents, it was merely a
"catchword" intended to clarify what was thought to be a misunderstanding of the maximum
tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing
developments.

Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly assemble in the nations streets and
parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v.
Apurado,16 already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by
no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending
and promoting the peoples exercise of these rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:

"It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and
to assembly and petition over comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias,
this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. There
is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil that [the State]
has a right to prevent." Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it
was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to assemble and
to petition the government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It
must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of free speech
was given a generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment
of reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties
the opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the person who feels aggrieved or
who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There
are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort
to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is
to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias
made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the commerce of
man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," which certainly is
not the only purpose that it could serve. To repeat, there can be no valid reason why a permit
should not be granted for the proposed march and rally starting from a public park that is the
Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US
embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox
v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L.
chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee, was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court,
held that a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity
to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of
the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence
of an organized society maintaining public order without which liberty itself would be lost in
the excesses of unrestricted abuses. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public
 convenience in the interest of all, it cannot be disregarded by the attempted exercise of some
civil right which in other circumstances would be entitled to protection."

xxx

6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes
in these words: "The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose;
not as to the relations of the speakers, but whether their utterances transcend the bounds of
the freedom of speech which the Constitution protects." There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties should be held accountable. It is true
that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of
what may probably occur, given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific public place is that the permit
must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."

xxx

8. By way of a summary. The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place. If it
were a private place, only the consent of the owner or the one entitled to its legal possession
is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional values.
It cannot be too strongly stressed that on the judiciary, -- even more so than on the other
departments rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x
x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a
permit to hold an assembly should inform the
licensing authority of the date, the public
place where and the time when it will take
place. If it were a private place, only the
consent of the owner or the one entitled to its
legal possession is required. Such application
should be filed well ahead in time to enable the
Sec. 4. Permit when required and when not
required.-- A written permit shall be required
for any person or persons to organize and hold
a public assembly in a public place. However,
no permit shall be required if the public
assembly shall be done or made in a freedom
park duly established by law or ordinance or in
private property, in which case only the
consent of the owner or the one entitled to its
legal possession is required, or in the campus
of a government-owned and operated
educational institution which shall be subject to
public official concerned to appraise whether
there may be valid objections to the grant of
the permit or to its grant but at another public
place. It is an indispensable condition to such
refusal or modification that the clear and
present danger test be the standard for the
decision reached. If he is of the view that there
is such an imminent and grave danger of a
substantive evil, the applicants must be heard
on the matter. Thereafter, his decision,
whether favorable or adverse, must be
transmitted to them at the earliest opportunity.
Thus if so minded, they can have recourse to
the proper judicial authority.
the rules and regulations of said educational
institution. Political meetings or rallies held
during any election campaign period as
provided for by law are not covered by this Act.
Sec. 5. Application requirements.-- All
applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing
and shall include the names of the
leaders or organizers; the purpose of
such public assembly; the date, time
and duration thereof, and place or
streets to be used for the intended
activity; and the probable number of
persons participating, the transport and
the public address systems to be used.
(b) The application shall incorporate
the duty and responsibility of applicant
under Section 8 hereof.
(c) The application shall be filed with
the office of the mayor of the city or
municipality in whose jurisdiction the
intended activity is to be held, at least
five (5) working days before the
scheduled public assembly.
(d) Upon receipt of the application,
which must be duly acknowledged in
writing, the office of the city or
municipal mayor shall cause the same
to immediately be posted at a
conspicuous place in the city or
municipal building.
Sec. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or
any official acting in his behalf to issue
or grant a permit unless there is clear
and convincing evidence that the
public assembly will create a clear and
present danger to public order, public
safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in
his behalf shall act on the application
within two (2) working days from the
date the application was filed, failing
which, the permit shall be deemed
granted. Should for any reason the
mayor or any official acting in his
behalf refuse to accept the application
for a permit, said application shall be
posted by the applicant on the
premises of the office of the mayor and
 shall be deemed to have been filed.

(c) If the mayor is of the view that there

is imminent and grave danger of a
substantive evil warranting the denial
or modification of the permit, he shall
immediately inform the applicant who
must be heard on the matter.

(d) The action on the permit shall be in

writing and served on the applica[nt]
within twenty-four hours.

(e) If the mayor or any official acting in

his behalf denies the application or
modifies the terms thereof in his
permit, the applicant may contest the
decision in an appropriate court of law.

(f) In case suit is brought before the

Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the
Intermediate Appellate Court, its
decisions may be appealed to the
appropriate court within forty-eight (48)
hours after receipt of the same. No
appeal bond and record on appeal
shall be required. A decision granting
such permit or modifying it in terms
satisfactory to the applicant shall be
immediately executory.

(g) All cases filed in court under this

section shall be decided within twenty-
four (24) hours from date of filing.
Cases filed hereunder shall be
immediately endorsed to the executive
judge for disposition or, in his absence,
to the next in rank.

(h) In all cases, any decision may be

appealed to the Supreme Court.

(i) Telegraphic appeals to be followed

by formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was adverted to
in Osmea v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time,
place, and manner of holding public assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22 that would use public places. The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful causes, otherwise they would not be
"peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing"
in the definition of public assembly content based, since they can refer to any subject. The words
"petitioning the government for redress of grievances" come from the wording of the Constitution, so
its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public
health or morals.

Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. "Public"
does not have to be defined. Its ordinary meaning is well-known. Websters Dictionary defines it,
thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common

interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place." So it does
not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress has
the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the
clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a
substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in
their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through
the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at
any time:

Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park Fuente Osmea.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set
aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the laws system of
regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or municipality until that
city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the
legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law
which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the
dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the
PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. For purposes of this Act:

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

xxx

Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
1avv phil.net

agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;
 (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to
disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity
of the public assembly or on the occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who can show the police an application duly filed on a given
date can, after two days from said date, rally in accordance with their application without the need to
show a permit, the grant of the permit being then presumed under the law, and it will be the burden
of the authorities to show that there has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected
to heightenedscrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot
be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates
the use of public places as to the time, place and manner of assemblies. Far from being insidious,
"maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section
15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the police and the mayors office to allow
proper coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the
immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the
law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.

No costs.

SO ORDERED.
H. HARRY L. ROQUE, JR., JOEL G.R. No. 188456
R. BUTUYAN, ROMEL R.
BAGARES, ALLAN JONES F.
LARDIZABAL, GILBERT T. Present:
ANDRES, IMMACULADA D.
GARCIA, ERLINDA T. PUNO, C.J.,
MERCADO, FRANCISCO A. QUISUMBING,*
ALCUAZ, MA. AZUCENA P. YNARES-SANTIAGO,
MACEDA, and ALVIN A. CARPIO,
PETERS, CORONA,
Petitioners, CARPIO MORALES,
CHICO-NAZARIO,
- versus - VELASCO, JR.,
NACHURA,
COMMISSION ON ELECTIONS, LEONARDO-DE CASTRO,
Represented by HON. CHAIRMAN BRION,
JOSE MELO, COMELEC PERALTA,
SPECIAL BIDS and AWARDS BERSAMIN,
COMMITTEE, represented by its DEL CASTILLO, and
CHAIRMAN HON. FERDINAND ABAD, JJ.
RAFANAN, DEPARTMENT OF
BUDGET and MANAGEMENT,
represented by HON. ROLANDO
ANDAYA, TOTAL
INFORMATION MANAGEMENT
CORPORATION and
SMARTMATIC
INTERNATIONAL
CORPORATION,
Respondents.

PETE QUIRINO-QUADRA,
Petitioner-in-Intervention.

SENATE OF THE PHILIPPINES,

represented by its President, JUAN Promulgated:
PONCE ENRILE, September 10, 2009
Movant-Intervenor.

x-----------------------------------------------------------------------------------------x
DECISION

VELASCO, JR., J.:

In a democratic system of government, the peoples voice is sovereign.

Corollarily, choosing through the ballots the men and women who are to govern
the country is perhaps the highest exercise of democracy. It is thus the interest of
the state to insure honest, credible and peaceful elections, where the sanctity of the
votes and the secrecy of the ballots are safeguarded, where the will of the
electorate is not frustrated or undermined. For when the popular will itself is
subverted by election irregularities, then the insidious seeds of doubt are sown and
the ideal of a peaceful and smooth transition of power is placed in jeopardy. To
automate, thus breaking away from a manual system of election, has been viewed
as a significant step towards clean and credible elections, unfettered by the travails
of the long wait and cheating that have marked many of our electoral exercises.

The Commission on Elections (Comelec), private respondents,

the National Computer Center and other computer wizards are confident that
nationwide automated elections can be successfully implemented. Petitioners and
some skeptics in the information technology (IT) industry have, however, their
reservations, which is quite understandable. To them, the automated election
system and the untested technology Comelec has chosen and set in motion are
pregnant with risks and could lead to a disastrous failure of elections. Comelec,
they allege, would not be up to the challenge. Cheating on a massive scale, but this
time facilitated by a machine, is perceived to be a real possibility.
In this petition for certiorari, prohibition and mandamus with prayer for a
restraining order and/or preliminary injunction, petitioners H. Harry L. Roque,
Jr., et al., suing as taxpayers and concerned citizens, seek to nullify respondent
Comelecs award of the 2010 Elections Automation Project (automation project) to
the joint venture of Total Information Management Corporation (TIM) and
Smartmatic International Corporation (Smartmatic)[1] and to permanently prohibit
the Comelec, TIM and Smartmatic from signing and/or implementing the
corresponding contract-award.

By Resolution[2] of July 14, 2009, the Court directed the respondents as well
as the University of the Philippines (UP) Computer Center, National Computer
Center (NCC) and Information Technology Foundation of the Philippines
(Infotech, hereinafter) to submit their collective or separate comments to the
petition on or before July 24, 2009.Before any of the comments could actually be
filed, Atty. Pete Quirino-Quadra sought leave to intervene. In another resolution,
the Court allowed the intervention and admitted the corresponding petition-in-
intervention.[3]

On July 29, 2009, the Court heard the principal parties in oral arguments
which was followed by the submission of their and the resource persons
instructive, albeit clashing, memoranda. The Senate, through the Senate President,
would later join the fray via a Motion for Leave to Intervene. In a Resolution of
August 25, 2009, the Court admitted the Senates comment-in-intervention.
 From the petition, the separate comments thereon, with their respective
annexes, and other pleadings, as well as from admissions during the oral
arguments, the Courtgathers the following facts:

On December 22, 1997, Congress enacted Republic Act No. (RA) 8436
authorizing the adoption of an automated election system (AES) in the May 11,
1998 national and local elections and onwards. The 1998, 2001, and 2004 national
and local polls, however, came and went but purely manual elections were still the
order of the day. On January 23, 2007, the amendatory RA 9369 [4] was passed
authorizing anew the Comelec to use an AES. Of particular relevance are Sections
6 and 10 of RA 9369originally Secs. 5 and 8, respectively of RA 8436, as
amendedeach defining Comelecs specific mandates insofar as automated elections
are concerned. The AES was not utilized in the May 10, 2000 elections, as funds
were not appropriated for that purpose by Congress and due to time constraints.
RA 9369 calls for the creation of the Comelec Advisory Council[5] (CAC).
CAC is to recommend, among other functions, the most appropriate, applicable
and cost-effective technology to be applied to the AES.[6] To be created by
Comelec too is the Technical Evaluation Committee (TEC)[7] which is tasked to
certify, through an established international certification committee, not later than
three months before the elections, by categorically stating that the AES, inclusive
of its hardware and software components, is operating properly and accurately
based on defined and documented standards.[8]

In August 2008, Comelec managed to automate the regional polls in the

Autonomous Region of Muslim Mindanao[9] (ARMM), using direct recording
electronics (DRE) technology[10] in the province of Maguindanao; and the optical
mark reader/recording (OMR) system, particularly the Central Count Optical Scan
(CCOS),[11] in the rest of ARMM.[12] What scores hailed as successful automated
ARMM 2008 elections paved the way for Comelec, with some prodding from
senators,[13] to prepare for a nationwide computerized run for the 2010
national/local polls, with the many lessons learned from the ARMM experience
influencing, according to the NCC, the technology selection for the 2010
automated elections.[14]

Accordingly, in early March 2009, the Comelec released the Request for
Proposal (RFP), also known as Terms of Reference (TOR), for the nationwide
automation of the voting, counting, transmission, consolidation and canvassing of
votes for the May 10, 2010 Synchronized National and Local Elections. What is
referred to also in the RFP and other contract documents as the 2010 Elections
Automation Project (Automation Project) consists of three elaborate components,
as follows:
Component 1: Paper-Based AES.[15] 1-A. Election Management System (EMS); 1-
B Precinct-Count Optic Scan (PCOS) [16] System and 1-C.
Consolidation/Canvassing System (CCS);

Component 2: Provision for Electronic Transmission of Election Results using

Public Telecommunications Network; and

Component 3: Overall Project Management

And obviously to address the possibility of systems failure, the RFP required
interested bidders to submit, among other things: a continuity plan[17] and a back-
up plan.[18]

Under the two-envelope system designed under the RFP,[19] each

participating bidder shall submit, as part of its bid, an Eligibility Envelope[20] that
should inter aliaestablish the bidders eligibility to bid. On the other hand, the
second envelope, or the Bid Envelope itself, shall contain two envelopes that, in
turn, shall contain the technical proposal and the financial proposal,
respectively.[21]

Subsequently, the Comelec Special Bids and Awards Committee (SBAC),

earlier constituted purposely for the aforesaid project, caused the publication in
different newspapers of the Invitation to Apply for Eligibility and to Bid[22] for the
procurement of goods and services to be used in the automation
project.[23] Meanwhile, Congress enacted RA 9525 appropriating some PhP 11.3
billion as supplemental budget for the May 10, 2010 automated national and local
elections.

Of the ten (10) invitation-responding consortia which obtained the bid

documents, only seven (7) submitted sealed applications for eligibility and
bids[24] which, per Bid Bulletin No. 24, were to be opened on a pre-set date,
following the convening of the pre-bid conference. Under the RFP, among those
eligible to participate in the bidding are manufacturers, suppliers and/or
distributors forming themselves into a joint venture. A joint venture is defined as a
group of two or more manufacturers, suppliers and/or distributors that intend to be
jointly and severally responsible or liable for a particular contract.[25]

Among the submitted bids was that of the joint venture (JV) of TIM and
Smartmatic, the former incorporated under the Corporation Code of
the Philippines. Smartmatic, on the other hand, was organized under the laws
of Barbados.[26] For a stated amount, said JV proposed to undertake the whole
automation project, inclusive of the delivery of 82,200 PCOS machines. After the
conclusion of the eligibility evaluation process, only three consortia [27] were found
and thus declared as eligible. Further on, following the opening of the passing
bidders Bid Envelope and evaluating the technical and financial proposals therein
contained, the SBAC, per its Res. No. 09-001, s.-2009, declared the above-stated
bid of the JV of TIM-Smartmatic as the single complying calculated bid.[28] As
required by the RFP, the bid envelope contained an outline of the joint ventures
back-up and continuity or contingency plans,[29] in case of a systems breakdown or
any such eventuality which shall result in the delay, obstruction or nonperformance
of the electoral process.

After declaring TIM-Smartmatic as the best complying bidder, the SBAC

then directed the joint venture to undertake post-qualification screening, and its
PCOS prototype machinesthe Smarmatic Auditable Electronic System (SAES)
1800to undergo end-to-end[30] testing to determine compliance with the pre-set
criteria.

In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation

Consolidated Report and Status Report on the Post-Qualification Evaluation
Procedures, the SBAC Technical Working Group (TWG) stated that it was
undertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and
Smartmatics proposed PCOS project machines. Its conclusion: The demo systems
presented PASSED all tests as required in the 26-item criteria specified in the
[RFP] with 100% accuracy rating.[31] The TWG also validated the eligibility, and
technical and financial qualifications of the TIM-Smartmatic joint venture.

On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC
and other stakeholders, issued Resolution No. (Res.) 8608[32] authorizing the SBAC
to issue, subject to well-defined conditions, the notice of award and notice to
proceed in favor of the winning joint venture.

Soon after, TIM wrote Comelec expressing its desire to quit the JV
partnership. In time, however, the parties were able to patch up what TIM earlier
described as irreconcilable differences between partners.

What followed was that TIM and Smartmatic, pursuant to the Joint Venture
Agreement (JVA),[33] caused the incorporation of a joint venture corporation (JVC)
that would enter into a contract with the Comelec. On July 8, 2009, the Securities
and Exchange Commission issued a certificate of incorporation in favor of
Smartmatic TIM Corporation. Two days after, or on July 10, 2009, Comelec and
Smartmatic TIM Corporation, as provider, executed a contract[34] for the lease of
goods and services under the contract for the contract amount of PhP
7,191,484,739.48, payable as the Goods and Services are delivered and/or progress
is made in accordance [with pre-set] Schedule of Payments.[35] On the same date,
a Notice to Proceed[36] was sent to, and received by, Smartmatic TIM Corporation.
 Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse
which, for all intents and purposes, impugns the validity and seeks to nullify the
July 10, 2009 Comelec-Smartmatic-TIM Corporation automation contract adverted
to. Among others, petitioners pray that respondents be permanently enjoined from
implementing the automation project on the submission that:
PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010
ELECTIONS AUTOMATION PROJECT TO PRIVATE
RESPONDENTS TIM AND SMARTMATIC FOR THE FOLLOWING
REASONS:
x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING
OF THE x x x PCOS MACHINES OFFERED BY PRIVATE
RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION
OF [RA] 8436 (AS AMENDED BY [RA] 9369)
THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE
RESPONDENTS x x x DO NOT SATISFY THE MINIMUM
SYSTEM CAPABILITIES SET BY [RA] NO. 8436 (AS
AMENDED BY [RA] 9369).
PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE
REQUIRED DOCUMENTS DURING THE BIDDING
PROCESS THAT SHOULD ESTABLISH THE DUE
EXISTENCE, COMPOSITION, AND SCOPE OF THEIR JOINT
VENTURE, IN VIOLATION OF THE SUPREME COURTS
HOLDING IN INFORMATION TECHNOLOGY FOUNDATION
OF THE PHILIPPINES, vs. COMELEC (G.R. No. 159139, Jan.
13, 2004).
THERE WAS NO VALID JOINT VENTURE AGREEMENT
[JVA] BETWEEN PRIVATE RESPONDENTS SMARTMATIC
AND TIM DURING THE BIDDING, IN VIOLATION OF THE
SUPREME COURTS HOLDING IN INFORMATION
TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs.
COMELEC x x x WHICH REQUIRES A JOINT VENTURE TO
INCLUDE A COPY OF ITS [JVA] DURING THE BIDDING.

THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE

RESPONDENTS SMARTMATIC AND TIM, DOES NOT
SATISFY THE SUPREME COURTS DEFINITION OF A
JOINT VENTURE IN INFORMATION TECHNOLOGY
FOUNDATION OF THE PHILIPPINES vs. COMELEC x x
x WHICH REQUIRES A COMMUNITY OF INTEREST IN
THE PERFORMANCE OF THE SUBJECT MATTER.

Filed as it was before contract signing, the petition understandably did not
implead Smartmatic TIM Corporation, doubtless an indispensable party to these
proceedings, an incident that did not escape Comelecs notice.[37]
 As a preliminary counterpoint, either or both public and private respondents
question the legal standing or locus standi of petitioners, noting in this regard that
the petition did not even raise an issue of transcendental importance, let alone a
constitutional question.

As an additional point, respondents also urge the dismissal of the petition on

the ground of prematurity, petitioners having failed to avail themselves of the
otherwise mandatory built-in grievance mechanism under Sec. 55 in relation to
Sec. 58 of RA 9184, also known as the Government Procurement Reform Act, as
shall be discussed shortly.

PROCEDURAL GROUNDS

The Court is not disposed to dismiss the petition on procedural grounds

advanced by respondents.

Locus Standi and Prematurity

It is true, as postulated, that to have standing, one must, as a rule, establish

having suffered some actual or threatened injury as a result of the alleged illegal
government conduct; that the injury is fairly traceable to the challenged action; and
that the injury is likely to be redressed by a favorable action.[38] The prescription on
standing, however, is a matter of procedure. Hence, it may be relaxed, as the Court
has often relaxed the rule for non-traditional plaintiffs, like ordinary citizens and
taxpayers, when the public interest so requires, such as when the matter is of
transcendental importance, of overarching significance to society, or of paramount
public interest.[39] As we wrote in Chavez v. PCGG,[40] where issues of public
importance are presented, there is no necessity to show that the suitor has
experienced or is in actual danger of suffering direct and personal injury as the
requisite injury is assumed.

Petitioners counsel, when queried, hedged on what specific constitutional

proscriptions or concepts had been infringed by the award of the subject
automation project to Smartmatic TIM Corporation, although he was heard to say
that our objection to the system is anchored on the Constitution itself a
violation [sic] of secrecy of voting and the sanctity of the ballot.[41] Petitioners also
depicted the covering automation contract as constituting an abdication by the
Comelec of its election-related mandate under the Constitution, which is to enforce
and administer all laws relative to the conduct of elections. Worse still, according
to the petitioners, the abdication, with its anti-dummy dimension, is in favor of a
foreign corporation that will be providing the hardware and software
requirements.[42] And when pressed further, petitioners came out with the
observation that, owing in part to the sheer length of the ballot, the PCOS would
not comply with Art. V, Sec. 2 of the Constitution[43] prescribing secrecy of voting
and sanctity of the ballot.[44]

There is no doubt in our mind, however, about the compelling significance

and the transcending public importance of the one issue underpinning this petition:
the successand the far-reaching grim implications of the failureof the nationwide
automation project that will be implemented via the challenged automation
contract.

The doctrinal formulation may vary, but the bottom line is that the Court
may except a particular case from the operations of its rules when the demands of
justice so require.[45] Put a bit differently, rules of procedure are merely tools
designed to facilitate the attainment of justice.[46] Accordingly, technicalities and
procedural barriers should not be allowed to stand in the way, if the ends of justice
would not be subserved by a rigid adherence to the rules of procedure. [47] This
postulate on procedural technicalities applies to matters of locus standi and the
presently invoked principle of hierarchy of courts, which discourages direct resort
to the Court if the desired redress is within the competence of lower courts to
grant. The policy on the hierarchy of courts, which petitioners indeed failed to
observe, is not an iron-clad rule. For indeed the Court has full discretionary power
to take cognizance and assume jurisdiction of special civil actions
for certiorari and mandamus filed directly with it for exceptionally compelling
reasons[48]or if warranted by the nature of the issues clearly and specifically raised
in the petition.[49]

The exceptions that justify a deviation from the policy on hierarchy appear
to obtain under the premises. The Court will for the nonce thus turn a blind eye to
the judicial structure intended, first and foremost, to provide an orderly
dispensation of justice.

Hierarchy of Courts

At this stage, we shall dispose of another peripheral issue before plunging

into the core substantive issues tendered in this petition.

Respondents contend that petitioners should have availed themselves of the

otherwise mandatory protest mechanism set forth in Sections 55 and 58 of the
procurement law (RA 9184) and the counterpart provisions found in its
Implementing Rules and Regulations (IRR)-A before seeking judicial
remedy. Insofar as relevant, Sec. 55 of RA 9184 provides that decisions of the bids
and awards committee (BAC) in all stages of procurement may be protested, via
a verified position paper, to the head of the procuring agency. On the other hand,
the succeeding Sec. 58 states that court action may be resorted to only after the
protest contemplated in Sec. 55 shall have been completed. Petitioners except. As
argued, the requirement to comply with the protest mechanism, contrary to what
may have been suggested in Infotech, is imposed on the bidders.[50]

Petitioners position is correct. As a matter of common sense, only a bidder is

entitled to receive a notice of the protested BAC action. Only a losing bidder
would be aggrieved by, and ergo would have the personality to challenge, such
action. This conclusion finds adequate support from the ensuing provisions of the
aforesaid IRR-A:

55.2. The verified position paper shall contain the following

documents:
a) The name of bidder;
b) The office address of the bidder x x x.

SUBSTANTIVE ISSUES

We now turn to the central issues tendered in the petition which, in terms of
subject matter, revolved around two concerns, viz: (1) the Joint Venture
Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to be used.
Petitioners veritably introduced another issue during the oral arguments, as
amplified in their memorandum, i.e. the constitutionality and statutory flaw of the
automation contract itself. The petition-in-intervention confined itself to certain
features of the PCOS machines.

The Joint Venture Agreement: Its Existence and Submission

The issue respecting the existence and submission of the TIM-Smartmatic

JVA does not require an extended disquisition, as repairing to the records would
readily provide a satisfactory answer. We note in fact that the petitioners do not
appear to be earnestly pressing the said issue anymore, as demonstrated by their
counsels practically cavalier discussion thereof during the oral argument. When
reminded, for instance, of private respondents insistence on having in fact
submitted their JVA dated April 23, 2009, petitioners counsel responded as
follows: We knew your honor that there was, in fact, a joint venture agreement
filed. However, because of the belated discovery that [there] were irreconcilable
differences, we then made a view that this joint venture agreement was a sham, at
best pro forma because it did not contain all the required stipulations in order to
evidence unity of interest x x x.[51]

Indeed, the records belie petitioners initial posture that TIM and Smartmatic,
as joint venture partners, did not include in their submitted eligibility envelope a
copy of their JVA. The SBACs Post Qualification Evaluation Report
(Eligibility) on TIM-Smartmatic, on page 10, shows the following entry: Valid
Joint Venture Agreement, stating among things, that the members are jointly and
severally liable for the whole obligation, in case of joint venture Documents
verified compliance.[52]

Contrary to what the petitioners posit, the duly notarized JVA, as couched,
explained the nature and the limited purpose[53] of the joint venture and expressly
defined, among other things, the composition, scope, and the 60-40 capital
structure of the aggroupment.[54] The JVA also contains provisions on the
management[55] and division of profits.[56] Article 3[57] of the JVA delineates the
respective participations and responsibilities of the joint venture partners in the
automation project.

Given the foregoing perspective, the Court is at a loss to understand how

petitioners can assert that the Smartmatic-TIM consortium has failed to prove its
joint venture existence and/or to submit evidence as would enable the Comelec to
know such items as who it is dealing with, which between the partners has control
over the decision-making process, the amount of investment to be contributed by
each partner, the parties shares in the profits and like details. Had petitioners only
bothered to undertake the usual due diligence that comes with good judgment and
examined the eligibility envelope of the Smartmatic-TIM joint venture, they would
have discovered that their challenge to and arguments against the joint venture and
its JVA have really no factual basis.

It may be, as petitioners observed, that the TIM-Smartmatic joint venture

remained an unincorporated aggroupment during the bid-opening and evaluation
stages. It ought to be stressed, however, that the fact of non-incorporation was
without a vitiating effect on the validity of the tender offers. For the bidding
ground rules, as spelled out primarily in the RFP and the clarificatory bid bulletins,
does not require, for bidding purposes, that there be an incorporation of the bidding
joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the
existence and the acceptability of proposals of unincorporated joint ventures. In
response to a poser, for example, regarding the 60% Filipino ownership
requirement in a joint venture arrangement, the SBAC, in its Bid Bulletin No. 22,
stated: In an unincorporated joint venture, determination of the required Filipino
participation may be made by examining the terms and conditions of the [JVA] and
other supporting financial documents submitted by the joint venture. (Emphasis
ours.) Petitioners, to be sure, have not shown that incorporation is part of the
pass/fail criteria used in determining eligibility.

Petitioners have made much of the Courts ruling in Information Technology

Foundation of the Philippines [Infotech] v. Comelec,[58] arguing in relation thereto
that the partnership of Smartmatic and TIM does not meet the Courts definition of
a joint venture which requires community of interest in the performance of the
subject matter.

Petitioners invocation of Infotech is utterly misplaced. Albeit Infotech and this case
are both about modernizing the election process and bidding joint ventures, the
relevant parallelism ends there. Cast as they are against dissimilar factual milieu,
one cannot plausibly set Infotech side with and contextually apply to this
case the ratio of Infotech. Suffice it to delve on the most glaring of differences.
In Infotech, the winning bid pertained to the consortium of Mega Pacific, a
purported joint venture. Extant records, however, do not show the formation of
such joint venture, let alone its composition. To borrow from the ponencia of then
Justice, later Chief Justice, Artemio Panganiban, there is no sign whatsoever of any
[JVA], consortium agreement [or] memorandum agreement x x x executed among
the members of the purported consortium.[59] There was in fine no evidence to
show that the alleged joint venture partners agreed to constitute themselves into a
single entity solidarily responsible for the entirety of the automation contract.
Unlike the purported Mega Pacific consortium in Infotech, the existence in this
case of the bidding joint venture of Smarmatic and TIM is properly documented
and spread all over the bid documents. And to stress, TIM and Smartmatic, in their
JVA, unequivocally agreed between themselves to perform their respective
undertakings. And over and beyond their commitments to each other, they
undertook to incorporate, if called for by the bidding results, a JVC that shall be
solidarily liable with them for any actionable breach of the automation contract.

In Infotech, the Court chastised the Comelec for dealing with an entity, the full
identity of which the poll body knew nothing about. Taking a cue from this
holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would
leave the Comelec hanging for the non-inclusion, as members of the joint venture,
of three IT providers. The three referred to are Jarltech International, Inc.
(Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting
machines; Dominion Voting Systems (Domino), the inventor of said PCOS
machines; and 2GO Transportation System Corporation (2GO), the subcontractor
responsible for the distribution of the PCOS machines throughout the country.

Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the
Comelec knows the very entities whom they are dealing with, which it can hold
solidary liable under the automation contract, should there be contract violation.
Secondly, there is no requirement under either RA 8436, as amended, or the RFP,
that all the suppliers, manufacturers or distributors involved in the transaction
should be part of the joint venture. On the contrary, the Instruction to Biddersas
petitioners themselves admit[60]allows the bidder to subcontract portions of the
goods or services under the automation project.[61]

To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA
between TIM and Smarmatic. Failing to gain traction for their indefensible posture,
they would thrust on the Court the notion of an invalid joint venture due to the
non-inclusion of more companies in the existing TIM-Smartmatic joint venture.
The irony is not lost on the Court.
This brings us to the twin technical issues tendered herein bearing on the
PCOS machines of Smartmatic.

At its most basic, the petition ascribes grave abuse of discretion to the
Comelec for, among other things, awarding the automation project in violation of
RA 8436, as amended. Following their line, no pilot test of the PCOS technology
Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot conduct
a nationwide automation of the 2010 polls using the machines thus offered. Hence,
the contract award to Smartmatic-TIM with their untested PCOS machines violated
RA 8436, as amended by RA 9369, which mandates that with respect to the May
2010 elections and onwards, the system procured must have been piloted in at least
12 areas referred to in Sec. 6 of RA 8436, as amended. What is more, petitioners
assert, private respondents PCOS machines do not satisfy the minimum system
capabilities set by the same law envisaged to ensure transparent and credible
voting, counting and canvassing of votes. And as earlier narrated, petitioners
would subsequently add the abdication angle in their bid to nullify the automation
contract.

Pilot Testing Not Necessary

 Disagreeing, as to be expected, private respondents maintain that there is
nothing in the applicable law requiring, as a pre-requisite for the 2010 election
automation project award, that the prevailing bidders automation system, the
PCOS in this case, be subjected to pilot testing. Comelec echoes its co-respondents
stance on pilot testing, with the added observation that nowhere in the statutory
provision relied upon are the words pilot testing used.[62] The Senates position and
its supporting arguments match those of private respondents.

The respondents thesis on pilot testing and the logic holding it together are
well taken. There can be no argument about the phrase pilot test not being found in
the law. But does it necessarily follow that a pilot test is absolutely not
contemplated in the law? We repair to the statutory provision petitioners cited as
requiring a pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369,
reading as follows:

Sec. 5. Authority to use an Automated Election System.- To carry

out the above stated-policy, the [Comelec], x x x is hereby authorized to
use an automated election system or systems in the same election in
different provinces, whether paper-based or a direct recording electronic
election system as it may deem appropriate and practical for the process
of voting, counting of votes and canvassing/consolidation and transmittal
of results of electoral exercises: Provided, that for the regular national
and local elections, which shall be held immediately after
the effectivity of this Act, the AES shall be used in at least two highly
urbanized cities and two provinces each in Luzon, Visayas, and
Mindanao to be chosen by the [Comelec]: Provided, further, That local
government units whose officials have been the subject of administrative
charges within sixteen (16) month prior to the May 14, 2007 elections
shall not be chosen. Provided, finally, That no area shall be chosen
without the consent of the Sanggunian of the local government unit
concerned. The term local government unit as used in this provision shall
refer to a highly urbanized city or province. In succeeding regular
national or local elections, the AES shall be implemented. (Emphasis
and underscoring added.)

RA 9369, which envisages an AES, be it paper-based or direct-recording

electronic, took effect in the second week of February 2007 or
thereabout.[63] The regular national and local elections referred to after
the effectivity of this Act can be no other than the May 2007 regular elections,
during which time the AES shall, as the law is worded, be used in at least two
highly urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court
takes judicial notice that the May 2007 elections did not deploy AES, evidently
due to the mix of time and funding constraints.
To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA
8436 is the pilot-testing provision that Comelec failed to observe.
 We are not persuaded.

From the practical viewpoint, the pilot testing of the technology in question
in an actual, scheduled electoral exercise under harsh conditions would have been
the ideal norm in computerized system implementation. The underscored proviso
of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot
testing of the PCOS in the 2007 national elections in the areas thus specified is an
absolute must for the machines use in the 2010 national/local elections. The Court
can concede that said proviso, with respect to the May 2007 elections, commands
the Comelec to automate in at least 12 defined areas of the country. But the bottom
line is that the required 2007 automation, be it viewed in the concept of a pilot test
or not, is not a mandatory requirement for the choice of system in, or a prerequisite
for, the full automation of the May 2010 elections.

As may be noted, Sec. 6 of RA 8436 may be broken into three essential

parts, the first partaking of the nature of a general policy declaration: that Comelec
is authorized to automate the entire elections. The second part states that for the
regular national and local elections that shall be held in May 2007, Comelec shall
use the AES, with an option, however, to undertake automation, regardless of the
technology to be selected, in a limited area or, to be more precise, in at least two
highly urbanized cities and two provinces each in Luzon, Visayas, and
Mindanao to be chosen by the Comelec. On the other hand, the last part,
phrased sans reference to the May 2007 elections, commands thus: [I]nsucceeding
regular national or local elections, the [automated election system] shall be
implemented. Taken in its proper context, the last part is indicative of the
legislative intent for the May 2010 electoral exercise to be fully automated,
regardless of whether or not pilot testing was run in the 2007 polls.

To argue that pilot testing is a condition precedent to a full automation in

2010 would doubtless undermine the purpose of RA 9369. For, as aptly observed
during the oral arguments, if there was no political exercise in May 2007, the
country would theoretically be barred forever from having full automation.

Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably

conveys the idea of unconditional full automation in the 2010 elections. A
construal making pilot testing of the AES a prerequisite or condition sine qua
non to putting the system in operation in the 2010 elections is tantamount to
reading into said section something beyond the clear intention of Congress, as
expressed in the provision itself. We reproduce with approval the following
excerpts from the comment of the Senate itself:
 The plain wordings of RA 9369 (that amended RA 8436)
commands that the 2010 elections shall be fully automated, and such full
automation is not conditioned on pilot testing in the May 2007 elections.
Congress merely gave COMELEC the flexibility to partially use the
AES in some parts of the country for the May 2007 elections.[64]

Lest it be overlooked, an AES is not synonymous to and ought not to be

confused with the PCOS. Sec. 2(a) of RA 8436, as amended, defines an AES as a
system using appropriate technology which has been demonstrated in the voting,
counting, consolidating, canvassing and transmission of election results, and other
electoral processes. On the other hand, PCOS refers to a technology wherein an
optical ballot scanner, into which optical scan paper ballots marked by hand by the
voter are inserted to be counted.[65]What may reasonably be deduced from these
definitions is that PCOS is merely one of several automated voting, counting or
canvassing technologies coming within the term AES, implying in turn that the
automated election system or technology that the Comelec shall adopt in future
elections need not, as a matter of mandatory arrangement, be piloted in the
adverted two highly urbanized cities and provinces.

In perspective, what may be taken as mandatory prerequisite for the full

automation of the 2010 regular national/ local elections is that the system to be
procured for that exercise be a technology tested either here or abroad. The ensuing
Section 8 of RA 8436, as amended, says so.

SEC 12. Procurement of Equipment and Materials. To achieve

the purpose of this Act, the Commission is authorized to procure, xxx,
by purchase, lease, rent or other forms of acquisition, supplies,
equipment, materials, software, facilities, and other services, from local
or foreign sources xxx. With respect to the May 10, 2010 elections and
succeeding electoral exercises, the system procured must have
demonstrated capability and been successfully used in prior
electoral exercise here or abroad. Participation in the 2007 pilot
exercise shall not be conclusive of the systems fitness. (Emphasis
supplied).

While the underscored portion makes reference to a 2007 pilot exercise, what it
really exacts is that, for the automation of the May 2010 and subsequent elections,
the PCOS or any AES to be procured must have demonstrated its capability and
success in either a local or a foreign electoral exercise. And as expressly declared
by the provision, participation in the 2007 electoral exercise is not a guarantee nor
is it conclusive of the systems fitness. In this regard, the Court is inclined to agree
with private respondents interpretation of the underscored portion in question: The
provision clearly conveys that the [AES] to be used in the 2010 elections need not
have been used in the 2007 elections, and that the demonstration of its capability
need not be in a previous Philippine election . Demonstration of the success and
capability of the PCOS may be in an electoral exercise in a foreign
jurisdiction.[66] As determined by the Comelec, the PCOS system had been
successfully deployed in previous electoral exercises in foreign countries, such
as Ontario, Canada; and New York, USA,[67] albeit Smartmatic was not necessarily
the system provider. But then, RA 9369 does not call for the winning bidder of the
2010 automation project and the deploying entity/provider in the foreign electoral
exercise to be one and the same entity. Neither does the law incidentally require
that the system be first used in an archipelagic country or with a topography or a
voting population similar to or approximating that of the Philippines.

At any event, any lingering doubt on the issue of whether or not full
automation of the 2010 regular elections can validly proceed without a pilot run of
the AES should be put to rest with the enactment in March 2009 of RA 9525,[68] in
which Congress appropriated PhP 11.301 billion to automate the 2010 elections,
subject to compliance with the transparency and accuracy requirements in selecting
the relevant technology of the machines, thus:
Sec. 2. Use of Funds. x x x Provided, however, That disbursement of the
amounts herein appropriated or any part thereof shall be authorized only
in strict compliance with the Constitution, the provisions of [RA] No.
9369 and other election laws incorporated in said Act as to ensure the
conduct of a free, orderly, clean, honest and credible election and shall
adopt such measures that will guaranty transparency and accuracy in
the selection of the relevant technology of the machines to be used on
May 10, 2010 automated national and local elections. (Emphasis added.)

It may safely be assumed that Congress approved the bill that eventually became
RA 9525, fully aware that the system using the PCOS machines were not piloted in
the 2007 electoral exercise. The enactment of RA 9525 is to us a compelling
indication that it was never Congress intent to make the pilot testing of a particular
automated election system in the 2007 elections a condition precedent to its use or
award of the 2010 Automation Project. The comment-in-intervention of the Senate
says as much.
Further, the highly charged issue of whether or not the 2008 ARMM
electionscovering, as NCC observed, three conflict-ridden island provincesmay be
treated as substantial compliance with the pilot test requirement must be answered
in the affirmative. No less than Senator Richard J. Gordon himself, the author of
the law, said that the system has been tried and tested in the ARMM elections last
year, so we have to proceed with the total implementation of the law.[69]

We note, though, the conflicting views of the NCC[70] and ITFP[71] on the
matter. Suffice it to state at this juncture that the system used in the 2008 ARMM
election exercise bears, as petitioners to an extent grudgingly admit, [72] a similarity
with the PCOS. The following, lifted from the Comelecs comment, is to us a fair
description of how the two systems (PCOS and CCOS) work and where the
difference lies:
xxx the elections in the [ARMM] utilized the Counting Center Optical
Scan (CCOS), a system which uses the Optical Mark Reader (OMR), the
same technology as the PCOS.

Under the CCOS, the voters cast their votes by shading or

marking the circles in the paper ballots which corresponded to the names
of their chosen candidates [like in PCOS]. Thereafter, the ballot boxes
were brought to the counting centers where they were scanned, counted
and canvassed.

xxx Under the PCOS, the counting, consolidation and canvassing of the votes
are done at the precinct level. The election results at the precincts are
then electronically transmitted to the next level, and so on. xxx PCOS
dispenses with the physical transportation of ballot boxes from the
precincts to the counting centers.[73]

Moreover, it has been proposed that a partial automation be implemented for the
May 2010 elections in accordance with Section 5 of RA 8436, as amended by RA
9369 instead of full automation. The Court cannot agree as such proposition has no
basis in law. Section 5, as worded, does not allow for partial automation. In fact,
Section 5 clearly states that the AES shall be implemented nationwide.[74] It
behooves this Court to follow the letter and intent of the law for full automation in
the May 2010 elections.

PCOS Meets Minimum Capabilities Standards

As another ground for the nullification of the automation contract, petitioners posit
the view that the PCOS machines do not satisfy the minimum system capabilities
prescribed by RA 8436, as amended. To a specific point, they suggest that the
PCOS system offered and accepted lacks the features that would assure accuracy in
the recording and reading of votes, as well as in the tabulation,
consolidation/canvassing, electronic transmission, storage results and accurate
ballot counting.[75] In this particular regard, petitioners allege that, based on
Smartmatics website, the PCOS has a margin of error of from 2% to 10%, way
beyond that of the required 99.99% accuracy in the counting of votes.[76]

The minimum system capabilities provision cited is Sec. 7 of RA 8436, as

amended, and the missing features referred to by petitioners are pars. (b) and (j). In
full, Sec. 7 of RA 8436, as amended, reads:
 SEC. 6. Minimum System Capabilities. - The automated
election system must at least have the following functional capabilities:

(a) Adequate security against unauthorized access;

(b) Accuracy in recording and reading of votes as well as in the
tabulation, consolidation/canvassing, electronic transmission, and
storage of results;
(c) Error recovery in case of non-catastrophic failure of device;
(d) System integrity which ensures physical stability and functioning of
the vote recording and counting process;
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for
verifying the correctness of reported election results;
(g) An election management system for preparing ballots and programs
for use in the casting and counting of votes and to consolidate, report
and display election result in the shortest time possible;
(h) Accessibility to illiterates and disabled voters;
(i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping, storing and archiving of physical or paper
resource used in the election process;
(m) Utilize or generate official ballots as herein defined;
(a) Provide the voter a system of verification to find out whether or not
the machine has registered his choice; and
(o) Configure access control for sensitive system data and
function.

In the procurement of this system, the Commission shall develop and

adopt an evaluation system to ascertain that the above minimum system
capabilities are met. The evaluation system shall be developed with the
assistance of an advisory council.
From the records before us, the Court is fairly satisfied that the Comelec has
adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria,
as will be enumerated shortly, to ensure compliance with the above minimum
systems capabilities.

The SBAC Memorandum[77] of June 03, 2009, as approved by Comelec Res.

8608,[78] categorically stated that the SBAC-TWG submitted its report that
TIM/Smartmatics proposed systems and machines PASSED all the end-to-end
demo tests using the aforementioned 26-item criteria, inclusive of the accuracy
rating test of at least 99.955%. As appearing in the SBAC-TWG report, the
corresponding answers/remarks to each of the 26 individual items are as herein
indicated:[79]

ITEM REQUIREMENT REMARK/DESCRIPTION

1 Does the system allow manual Yes. The proposed PCOS machine
feeding of a ballot into the PCOS accepted the test ballots which were
 machine?
2 Does the system scan a ballot sheet at Yes. A 30-inch ballot was used in this
the speed of at least 2.75 inches per
second?
3 Is the system able to capture and store Yes the system captured the images of
in an encrypted format the digital
images of the ballot for at least 2,000 Each of the 1,000 images filescontained
ballot sides (1,000 ballots, with back the images of the front and back sides
to back printing)?
4 Is the system a fully integrated single
device as described in item no. 4 of
Component 1-B?
5 Does the system have a scanning
resolution of at least 200 dpi?
6 Does the system scan in grayscale?
7 Does the system require authorization
and authentication of all operators,
such as, but not limited to, usernames
and passwords, with multiple user
access levels?
8 Does the system have an electronic
display?
9 Does the system employ error
handling procedures, including, but
not limited to, the use of error
prompts and other related
instructions?
10 Does the system count the voters vote
manually fed one at a time.
test. Scanning the 30-inch ballot took
2.7 seconds, which translated to
11.11inches per second.
the 1,000 ballots in encrypted format.
of the ballot, totaling to 2,000 ballot
side.
To verify the captured ballot images,
decrypted copies of the encrypted files
were also provided. The same were
found to be digitized representations of
the ballots cast.
Yes. The proposed PCOS is a fully
integrated single device, with built-in
printer and built-in data
communications ports (Ethernet and
USB).
Yes. A portion of a filled up marked
oval was blown up using image editor
software to reveal the number of dots
per inch. The sample image showed
200 dpi.
File properties of the decrypted image
file also revealed 200 dpi.
Yes. 30 shades of gray were scanned in
the test PCOS machine, 20 of which
were required, exceeding the required
4-bit/16 levels of gray as specified in
the Bid Bulletin No. 19.
Yes. The system required the use of a
security key with different sets
ofpasswords/PINs for Administrator
and Operator users.
Yes. The PCOS machine makes use of
an LCD display to show information:
if a ballot may be inserted into
the machine;
if a ballot is being processed; if
a ballot is being rejected;
on other instructions and
information to the voter/operator.
Yes. The PCOS showed error messages
on its screen whenever a ballot
isrejected by the machine and gives
instructions to the voter on what to do
next, or when there was a ballot jam
error.
Yes. The two rounds of tests were
 as marked on the ballot with an
accuracy rating of at least 99.995%?
11 Does the system detect and reject
fake or spurious, and previously
scanned ballots?
12 Does the system scan both sides of a
ballot and in any orientation in one
pass?
13 Does the system have necessary
safeguards to determine the
authenticity of a ballot, such as, but
not limited to, the use of bar codes,
holograms, color shifting ink, micro
printing, to be provided on the ballot,
which can be recognized by the
system?
14 Are the names of the candidates pre-
printed on the ballot?
conducted for this test using only valid
marks/shades on the ballots. 20,000
marks were required to complete this
test, with only one (1) allowable
reading error.
625 ballots with 32 marks each were
used for this test. During the
comparison of the PCOS-generated
results with the manually
prepared/predetermined results, it was
found out that there were seven (7)
marks which were inadvertently missed
out during ballot preparation by the
TWG. Although the PCOS-generated
results turned out to be 100% accurate,
the 20,000-mark was not met thereby
requiring the test to be repeated.
To prepare for other possible missed
out marks,650 ballots with (20,800
marks) were used for the next round of
test, which also yielded 100% accuracy.
Yes. This test made use of one (1)
photocopied ballot and one (1) re-
created ballot. Both were rejected by
the PCOS.
Yes. Four (4) ballots with valid marks
were fed into the PCOS machine in the
four (4) portrait orientations specified
in Bid Bulletin No. 4 (either back or
front, upside down or right side up),
and all were accurately captured.
Yes. The system was able to recognize
if the security features on the ballot are
missing.
Aside from the test on the fake or
spurious ballots (Item No. 11), three (3)
test ballots with tampered bar codesand
timing marks were used and were all
rejected by the PCOS machine.
The photocopied ballot in the test for
Item No. 11 was not able to replicate
the UV ink pattern on top portion of the
ballot causing the rejection of the
ballot.
Yes. The Two sample test ballots of
different lengths were provided:
one (1) was 14 inches long while
the other was 30 inches long.
Both were 8.5 inches wide.
The first showed 108 pre-printed
candidate names for the fourteen
(14) contests/positions, including

15 Does each side of the ballot sheet
accommodate at least 300 names of
candidates with a minimum font size
of 10, in addition to other mandatory
information required by law?
16 Does the system recognize full shade
marks on the appropriate space on the
ballot opposite the name of the
candidate to be voted for?
17 Does the system recognize partial
shade marks on the appropriate space
on the ballot opposite the name of the
candidate to be voted for?
18 Does the system recognize check
()marks on the appropriate space on
the ballot opposite the name of the
candidate to be voted for?
19 Does the system recognize x marks
on the appropriate space on the ballot
opposite the name of the candidate to
be voted for?
20 Does the system recognize both
pencil and ink marks on the ballot?
two (2) survey questions on
gender and age group, and a
plebiscite question.
The other showed 609 pre-printed
candidate names, also for fourteen
(14) positions including three (3)
survey questions.
Yes. The 30-inch ballot, which was
used to test Item No. 2, contained 309
names for the national positions and
300 names for local positions. The total
pre-printed names on the ballot totaled
609.
This type of test ballot was also used
for test voting by the public,
including members of the media.
Arial Narrow, font size 10, was used in
the printing of the candidate
names.
Yes. The ballots used for the accuracy
test (Item No. 10), which made use of
full shade marks, were also used in this
test and were accurately recognized by
the PCOS machine.
Yes. Four (4) test ballots were used
with one (1) mark each per ballot
showing the following pencil marks:
top half shade;
bottom half shade;
left half shade; and
right half shade
These partial shade marks were all
recognized by the PCOS machine
Yes. One (1) test ballot with one check
() mark, using a pencil, was used for
this test.
The mark was recognized successfully.
Yes. One (1) test ballot with one x
mark, using a pencil, was used for this
test.
The mark was recognized successfully.
Yes. The 1000 ballots used in the
accuracy test (Item No. 10) were
marked using the proposed marking
pen by the bidder.
A separate ballot with one (1) pencil
mark was also tested. This mark was
also recognized by the PCOS machine.
Moreover, the tests for Items No. 17, 18
and 19 were made using pencil marks

21 In a simulation of a system shut
down, does the system have error
recovery features?
22 Does the system have transmission
and consolidation/canvassing
capabilities?
23 Does the system generate a backup
copy of the generated reports, in a
removable data storage device?
24 Does the system have alternative
power sources, which will enable it to
fully operate for at least 12 hours?
25 Is the system capable of generating
and printing reports?
26 Did the bidder successfully
demonstrate EMS, voting counting,
consolidation/canvassing and
on the ballots.
Yes. Five (5) ballots were used in this
test. The power cord was pulled from
the PCOS while the 3rd ballot was in the
middle of the scanning procedure, such
that it was left hanging in the ballot
reader.
After resumption of regular power
supply, the PCOS machine was able to
restart successfully with notification to
the operator that there were two (2)
ballots already cast in the machine. The
hanging 3rd ballot was returned to the
operator and was able to be re-fed into
the PCOS machine. The marks on all
five (5) were all accurately recognized.
Yes. The PCOS was able to transmit to
the CCS during the end-to-end
demonstration using GLOBE prepaid
Internet kit.
Yes. The PCOS saves a backup copy of
the ERs, ballot images, statistical report
and audit log into a Compact Flash
(CF) Card.
Yes. A 12 bolt 18AH battery lead acid
was used in this test. The initial test had
to be repeated due to a short circuit,
after seven (7) hours from start-up
without ballot scanning. This was
explained by TIM-Smartmatic to be
caused by non-compatible wiring of the
battery to the PCOS. A smaller wire
than what is required was inadvertently
used, likening the situation to incorrect
wiring of a car battery. Two (2)
COMELEC electricians were called to
confirm TIM-Smartmatics explanation.
The PCOS machine was connected to
regular power and started successfully.
The following day, the re-test was
completed in 12 hours and 40 minutes
xxx 984 ballots were fed into the
machine. The ER, as generated by the
PCOS was compared with
predetermined result, showed 100%
accuracy.
Yes. The PCOS prints reports via its
built-in printer which includes:
1. Initialization Report; 2. Election
Returns (ER); 3. PCOS Statistical
Report; 4. Audit Log.
Yes. An end-to-end demonstration of
all proposed systems was presented
covering: importing of election data
 transmission? into the EMS; creation of election
configuration data for the PCOS and
the CCS using EMS; creation of ballot
faces using EMS; configuring the
PCOS and the CCS using the EMS-
generated election configuration file;
initialization, operation, generation of
reports and backup using the PCOS;
electronic transmission of results to the:
[1] from the PCOS to city/municipal
CCS and the central server. [2] from the
city/municipal CCS to the provincial
CCS. [3] from the provincial CCS to
the national CCS; receipt and canvass
of transmitted results: [1] by the
city/municipal CCS from the PCOS. [2]
by the provincial CCS from the
city/municipal CCS. [3] by the national
CCS from the provincial CCS; receipt
of the transmittal results by the central
server from the PCOS.

Given the foregoing and absent empirical evidence to the contrary, the
Court, presuming regularity in the performance of regular duties, takes the demo-
testing thus conducted by SBAC-TWG as a reflection of the capability of the
PCOS machines, although the tests, as Comelec admits,[80] were done literally in
the Palacio del Governadorbuilding, where a room therein simulated a town, the
adjoining room a city, etc. Perusing the RFP, however, the real worth of the PCOS
system and the machines will of course come after they shall have been subjected
to the gamut of acceptance tests expressly specified in the RFP, namely, the lab
test, field test, mock election test, transmission test and, lastly, the final test and
sealing procedure of all PCOS and CCS units using the actual Election Day
machine configuration.[81]

Apropos the counting-accuracy feature of the PCOS machines, petitioners

no less impliedly admit that the web page they appended to their petition, showing
a 2% to 10% failing rate, is no longer current.[82] And if they bothered to examine
the current website of Smartmatic specifically dealing with its SAES 1800, the
PCOS system it offered, they would have readily seen that the advertised accuracy
rating is over 99.99999%.[83] Moreover, a careful scrutiny of the old webpage of
Smarmatic reveals that the 2% to 10% failure rate applied to optical scanners and
not to SAES. Yet the same page discloses that the SAES has 100% accuracy.
Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court need
not belabor this and the equally irrelevant estoppel principle petitioners impose on
us.

Intervenor Cuadras concern relates to the auditability of the election results.

In this regard, it may suffice to point out that PCOS, being a paper-based
technology, affords audit since the voter would be able, if need be, to verify if the
machine had scanned, recorded and counted his vote properly. Moreover, it should
also be noted that the PCOS machine contains an LCD screen, one that can be
programmed or configured to display to the voter his votes as read by the
machine. [84]
No Abdication of Comelecs Mandate and Responsibilty

As a final main point, petitioners would have the Comelec-Smartmatic-TIM

Corporation automation contract nullified since, in violation of the Constitution, it
constitutes a wholesale abdication of the poll bodys constitutional mandate for
election law enforcement. On top of this perceived aberration, the mechanism of
the PCOS machines would infringe the constitutional right of the people to the
secrecy of the ballot which, according to the petitioners, is provided in Sec. 2, Art.
V of the Constitution.[85]

The above contention is not well taken.

The first function of the Comelec under the Constitution[86]and the Omnibus
Election Code for that matterrelates to the enforcement and administration of all
laws and regulations relating to the conduct of elections to public office to
ensure a free, orderly and honest electoral exercise. And how did petitioners
come to their conclusion about their abdication theory? By acceding to Art. 3.3
of the automation contract, Comelec relinquished, so petitioners claim,
supervision and control of the system to be used for the automated elections. To
a more specific point, the loss of control, as may be deduced from the ensuing
exchanges, arose from the fact that Comelec would not be holding possession of
what in IT jargon are the public and private keys pair.
CHIEF JUSTICE: Well, more specifically are you saying that the
main course of this lost of control is the fact that SMARTMATIC holds
the public and private keys to the sanctity of this system?
ATTY. ROQUE: Yes, Your Honor, as well as the fact that they
control the program embedded in the key cost that will read their votes
by which the electorate may verify that their votes were counted.
CHIEF JUSTICE: You are saying that SMARTMATIC and not
its partner TIM who hold these public and private keys?
ATTY. ROQUE: Yes, Your Honor.
The Court is not convinced. There is to us nothing in Art 3.3 of the automation
contract, even if read separately from other stipulations and the provisions of the
bid documents and the Constitution itself, to support the simplistic conclusion of
abdication of control pressed on the Court. Insofar as pertinent, Art 3.3 reads:
 3.3 The PROVIDER shall be liable for all its obligations under this Project
and the performance of portions thereof by other persons or entities not
parties to this Contract shall not relieve the PROVIDER of said
obligations and concomitant liabilities.
SMARTMATIC, as the joint venture partner with the greater track
record in automated elections, shall be in charge of the technical
aspects of the counting and canvassing software and hardware,
including transmission configuration and system integration.
SMARTMATIC shall also be primarily responsible for preventing and
troubleshooting technical problems that may arise during the elections.
(Emphasis added.)
The proviso designating Smartmatic as the joint venture partner in charge of
the technical aspect of the counting and canvassing wares does not to us translate,
without more, to ceding control of the electoral process to Smartmatic. It bears to
stress that the aforesaid designation of Smartmatic was not plucked from thin air,
as it was in fact an eligibility requirement imposed, should the bidder be a joint
venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible
Bidders, whence the second paragraph of aforequoted Art. 3.3 came from, reads:

5.4 A JV of two or more firms as partners shall comply with the

following requirements.
xxxx
(e) The JV member with a greater track record in automated
elections, shall be in-charge of the technical aspects of the counting and
canvassing software and hardware, including transmission configuration
and system integration

And lest it be overlooked, the RFP, which forms an integral part of the
automation contract,[87] has put all prospective bidders on notice of Comelecs
intent to automate and to accept bids that would meet several needs, among which
is a complete solutions provider which can provide effective overall nationwide
project management serviceunder COMELEC supervision and control, to
ensure effective and successful implementation of the [automation]
Project.[88] Complementing this RFP advisory as to control of the election process
is Art. 6.7 of the automation contract, providing:

6.7 Subject to the provisions of the General Instructions to be

issued by the Commission En Banc, the entire processes of
voting, counting, transmission, consolidation and canvassing of votes
shall be conducted by COMELECs personnel and officials, and their
performance, completion and final results according to specifications
and within the specified periods shall be the shared responsibility of
COMELEC and the PROVIDER. (Emphasis added.)
But not one to let an opportunity to score points pass by, petitioners rhetorically
ask: Where does Public Respondent Comelec intend to get this large number of
professionals, many of whom are already gainfully employed abroad? [89] The
Comelec, citing Sec. 3[90] and Sec. 5 of RA 8436,[91] as amended, aptly answered
this poser in the following wise:
x x x [P]ublic respondent COMELEC, in the implementation of the
automated project, will forge partnerships with various entities in different
fields to bring about the success of the 2010 automated elections.
Public respondent COMELEC will partner with Smartmatic TIM
Corporation for the training and hiring of the IT personnel as well as for
the massive voter-education campaign. There is in fact a budget allocation
x x x for these undertakings. x x x
As regards the requirement of RA 9369 that IT-capable personnel shall be
deputized as a member of the BEI and that another IT-capable person shall
assist the BOC, public respondent COMELEC shall partner with DOST
and other agencies and instrumentalities of the government.

In not so many words during the oral arguments and in their respective
Memoranda, public and private respondents categorically rejected outright
allegations of abdication by the Comelec of its constitutional duty. The petitioners,
to stress, are strangers to the automation contract. Not one participated in the
bidding conference or the bidding proper or even perhaps examined the bidding
documents and, therefore, none really knows the real intention of the parties. As
case law tells us, the court has to ferret out the real intent of the parties. What is
fairly clear in this case, however, is that petitioners who are not even privy to the
bidding process foist upon the Court their own view on the stipulations of the
automation contract and present to the Court what they think are the parties true
intention. It is a study of outsiders appearing to know more than the parties do, but
actually speculating what the parties intended. The following is self-explanatory:

CHIEF JUSTICE: Why did you say that it did not, did you talk with the
Chairman and Commissioners of COMELEC that they failed to perform
this duty, they did not exercise this power of control?
ATTY. ROQUE : Your Honor, I based it on the fact that it was the
COMELEC in fact that entered into this contract .
CHIEF JUSTICE : Yes, but my question is did you confront the
COMELEC officials that they forfeited their power of control in over
our election process?
ATTY. ROQUE : We did not confront, your Honor. We impugned their
acts, Your Honor.[92]
Just as they do on the issue of control over the electoral process, petitioners also
anchor on speculative reasoning their claim that Smartmatic has possession and
control over the public and private keys pair that will operate the PCOS machines.
Consider: Petitioners counsel was at the start cocksure about Smartmatics control
of these keys and, with its control, of the electoral process.[93]

Several questions later, his answers had a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not

demand that it have access, that it be given access to and in fact generate
its own keys independently with SMARTMATIC so that it would be
COMELEC and not SMARTMATIC that would have full control of the
technology insofar as the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to

generate these keys, xxx. [94]

And subsequently, the speculative nature of petitioners position as to who

would have possession and control of the keys became apparent.

CHIEF JUSTICE: Yes, but did you check with the COMELEC who will
be holding these two keys x x x did you check with COMELEC whether
this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.

xxxx

CHIEF JUSTICE: Why do you make that poor conclusion against the
COMELEC x x x May not the COMELEC hire the services of experts in
order for the institution to be able to discharge its constitutional
functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance on

individuals who do not have the same kind of accountability as public
officers x x x

CHIEF JUSTICE: Are you saying that the COMELEC did not consult
with available I.T. experts in the country before it made the bidding rules
before it conducted the bidding and make the other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer
with the I.T. Foundation x x x.
CHIEF JUSTICE: But is that foundation the only expert, does it have a
monopoly of knowledge?[95]
 The Court, to be sure, recognizes the importance of the vote-security issue
revolving around the issuance of the public and private keys pair to the Board of
Election Inspectors, including the digital signatures. The NCC comment on the
matter deserves mention, appearing to hew as it does to what appear on the
records. The NCC wrote:

The RFP/TOR used in the recent bidding for the AES to be used
in the 2010 elections specifically mandated the use of public key
cryptography. However, it was left to the discretion of the bidder to
propose an acceptable manner of utilization for approval/acceptance of
the Comelec. Nowhere in the RFP/TOR was it indicated that COMELEC
would delegate to the winning bidder the full discretion, supervision and
control over the manner of PKI [Public Key Infrastructure] utilization.

With the view we take of the automation contract, the role of Smartmatic
TIM Corporation is basically to supply the goods necessary for the automation
project, such as but not limited to the PCOS machines, PCs, electronic
transmission devices and related equipment, both hardware and software, and the
technical services pertaining to theiroperation. As lessees of the goods and the
back-up equipment, the corporation and its operators would provide assistance
with respect to the machines to be used by the Comelec which, at the end of the
day, will be conducting the election thru its personnel and whoever it deputizes.

And if only to emphasize a point, Comelecs contract is with Smartmatic

TIM Corporation of which Smartmatic is a 40% minority owner, per the JVA of
TIM and Smartmatic and the Articles of Incorporation of Smartmatic TIM
Corporation. Accordingly, any decision on the part or on behalf of Smartmatic will
not be binding on Comelec. As a necessary corollary, the board room voting
arrangement that Smartmatic and TIM may have agreed upon as joint venture
partners, inclusive of the veto vote that one may have power over the other, should
really be the least concern of the Comelec.

Parenthetically, the contention that the PCOS would infringe on the secrecy
and sanctity of the ballot because, as petitioners would put it, the voter would be
confronted with a three feet long ballot,[96] does not commend itself for
concurrence. Surely, the Comelec can put up such infrastructure as to insure that
the voter can write his preference in relative privacy. And as demonstrated during
the oral arguments, the voter himself will personally feed the ballot into the
machine. A voter, if so minded to preserve the secrecy of his ballot, will always
devise a way to do so. By the same token, one with least regard for secrecy will
likewise have a way to make his vote known.

During the oral arguments, the notion of a possible violation of the Anti-
Dummy Law cropped up, given the RFP requirement of a joint venture bidder to
be at least be 60% Filipino. On the other hand, the winning bidder, TIM-
Smartmatic joint venture, has Smartmatic, a foreign corporation, owning 40% of
the equity in, first, the joint venture partnership, and then in Smartmatic TIM
Corporation.

The Anti-Dummy Law[97] pertinently states:

Section 1. Penalty. In all cases in which any constitutional or

legal provision requires Philippine or any other specific citizenship
as a requisite for the exercise or enjoyment of a right, franchise or
privilege, any citizen of the Philippines or of any other specific country
who allows his name or citizenship to be used for the purpose of evading
such provision, and any alien or foreigner profiting thereby, shall be
punished by imprisonment xxx and by a fine xxx.

SECTION 2. Simulation of minimum capital stock In all cases in

which a constitutional or legal provision requires that a corporation
or association may exercise or enjoy a right, franchise or privilege,
not less than a certain per centum of its capital must be owned
by citizens of the Philippines or any other specific country, it shall be
unlawful to falsely simulate the existence of such minimum stock or
capital as owned by such citizen for the purpose of evading such
provision. xxx

SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any

person, corporation, or association which, having in its name or under its
control, a right, franchise, privilege, property or business, the
exercise or enjoyment of which is expressly reserved by the
Constitution or the laws to citizens of the Philippines or of any other
specific country, or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, permits or
allows the use, exploitation or enjoyment thereof by a person,
corporation, or association not possessing the requisites prescribed by
the Constitution or the laws of the Philippines; or leases, or in any other
way, transfers or conveys said right, franchise, privilege, property or
business to a person, corporation or association not otherwise qualified
under the Constitution xxx shall be punished by imprisonment xxx
(Emphasis added.)

The Anti-Dummy Law has been enacted to limit the enjoyment of certain
economic activities to Filipino citizens or corporations. For liability for violation of
the law to attach, it must be established that there is a law limiting or reserving the
enjoyment or exercise of a right, franchise, privilege, or business to citizens of
the Philippines or to corporations or associations at least 60 per centum of the
capital of which is owned by such citizens. In the case at bench, the Court is not
aware of any constitutional or statutory provision classifying as a nationalized
activity the lease or provision of goods and technical services for the automation of
an election. In fact, Sec. 8 of RA 8436, as amended, vests the Comelec with
specific authority to acquire AES from foreign sources, thus:

SEC 12. Procurement of Equipment and Materials. To achieve

the purpose of this Act, the Commission is authorized to procure, xxx,
by purchase, lease, rent or other forms of acquisition, supplies,
equipment, materials, software, facilities, and other services, from local
or foreign sources xxx. (Emphasis added.)

Petitioners cite Executive Order No. (EO) 584,[98] Series of 2006,

purportedly limiting contracts for the supply of materials, goods and commodities
to government-owned or controlled corporation, company, agency or municipal
corporation to corporations that are 60% Filipino. We do not quite see the
governing relevance of EO 584. For let alone the fact that RA 9369 is, in relation
to EO 584, a subsequent enactment and, therefore, enjoys primacy over the
executive issuance, the Comelec does fall under the category of a government-
owned and controlled corporation, an agency or a municipal corporation
contemplated in the executive order.

A view has been advanced regarding the susceptibility of the AES to

hacking, just like the voting machines used in certain precincts in Florida, USA in
the Gore-Bush presidential contests. However, an analysis of post-election reports
on the voting system thus used in the US during the period material and the AES to
be utilized in the 2010 automation project seems to suggest stark differences
between the two systems. The first relates to the Source Code, defined in RA 9369
as human readable instructions that define what the computer equipment will
do.[99] The Source Code for the 2010 AES shall be available and opened for review
by political parties, candidates and the citizens arms or their
representatives;[100] whereas in the US precincts aforementioned, the Source Code
was alleged to have been kept secret by the machine manufacture company, thus
keeping the American public in the dark as to how exactly the machines counted
their votes. And secondly, in the AES, the PCOS machines found in the precincts
will also be the same device that would tabulate and canvass the votes; whereas in
the US, the machines in the precincts did not count the votes. Instead the votes cast
appeared to have been stored in a memory card that was brought to a counting
center at the end of the day. As a result, the hacking and cheating may have
possibly occurred at the counting center.

Additionally, with the AES, the possibility of system hacking is very slim.
The PCOS machines are only online when they transmit the results, which would
only take around one to two minutes. In order to hack the system during this tiny
span of vulnerability, a super computer would be required. Noteworthy also is the
fact that the memory card to be used during the elections is encrypted and read-
onlymeaning no illicit program can be executed or introduced into the memory
card.

Therefore, even though the AES has its flaws, Comelec and Smartmatic
have seen to it that the system is well-protected with sufficient security measures in
order to ensure honest elections.

And as indicated earlier, the joint venture provider has formulated and put in
place a continuity and back-up plans that would address the understandable
apprehension of a failure of elections in case the machines falter during the actual
election. This over-all fall-back strategy includes the provisions for 2,000 spare
PCOS machines on top of the 80,000 units assigned to an equal number precincts
throughout the country. The continuity and back-up plans seek to address the
following eventualities: (1) The PCOS fails to scan ballots; (2) The PCOS scans
the ballots, but fails to print election returns (ERs); and/or (3) The PCOS prints but
fails to transmit the ERs. In the event item #1 occurs, a spare PCOS, if available,
will be brought in or, if not available, the PCOS of another precinct (PCOS 2 for
clarity), after observing certain defined requirements,[101] shall be used. Should all
the PCOS machines in the entire municipality/city fail, manual counting of the
paper ballots and the manual accomplishment of ERs shall be resorted to in
accordance with Comelec promulgated rules on appreciation of automated
ballots.[102] In the event item #2 occurs where the PCOS machines fail to print ERs,
the use of spare PCOS and the transfer of PCOS-2 shall be effected. Manual
counting of ERs shall be resorted to also if all PCOS fails in the entire
municipality. And should eventuality #3 transpire, the following back-up options,
among others, may be availed of: bringing PCOS-1 to the nearest precinct or
polling center which has a functioning transmission facility; inserting transmission
cable of functioning transmission line to PCOS-1 and transmitting stored data from
PCOS-1 using functioning transmission facility.

The disruption of the election process due to machine breakdown or

malfunction may be limited to a precinct only or could affect an entire
municipal/city. The worst case scenario of course would be the wholesale
breakdown of the 82,000 PCOS machines. Nonetheless, even in this most extreme
case, failure of all the machines would not necessarily translate into failure of
elections. Manual count tabulation and transmission, as earlier stated, can be done,
PCOS being a paper-ballot technology. If the machine fails for whatever reason,
the paper ballots would still be there for the hand counting of the votes, manual
tabulation and transmission of the ERs. Failure of elections consequent to voting
machines failure would, in fine, be a very remote possibility.
A final consideration.
 The first step is always difficult. Hardly anything works, let alone ends up
perfectly the first time around. As has often been said, if one looks hard enough, he
will in all likelihood find a glitch in any new system. It is no wonder some IT
specialists and practitioners have considered the PCOS as unsafe, not the most
appropriate technology for Philippine elections, and easily hackable, even. And the
worst fear expressed is that disaster is just waiting to happen, that PCOS would not
work on election day.

Congress has chosen the May 2010 elections to be the maiden run for full
automation. And judging from what the Court has heard and read in the course of
these proceedings, the choice of PCOS by Comelec was not a spur-of-moment
affair, but the product of honest-to-goodness studies, consultations with CAC, and
lessons learned from the ARMM 2008 automated elections. With the backing of
Congress by way of budgetary support, the poll body has taken this historic, if not
ambitious, first step. It started with the preparation of the RFP/TOR, with a list of
voluminous annexes embodying in specific detail the bidding rules and
expectations from the bidders. And after a hotly contested and, by most accounts, a
highly transparent public bidding exercise, the joint venture of a Filipino and
foreign corporation won and, after its machine hurdled the end-to-end
demonstration test, was eventually awarded the contract to undertake the
automation project. Not one of the losing or disqualified bidders questioned, at
least not before the courts, the bona fides of the bidding procedures and the
outcome of the bidding itself.

Assayed against the provisions of the Constitution, the enabling automation

law, RA 8436, as amended by RA 9369, the RFP and even the Anti-Dummy Law,
which petitioners invoked as an afterthought, the Court finds the project award to
have complied with legal prescriptions, and the terms and conditions of the
corresponding automation contract in question to be valid. No grave abuse of
discretion, therefore, can be laid on the doorsteps of respondent Comelec. And
surely, the winning joint venture should not be faulted for having a foreign
company as partner.

The Comelec is an independent constitutional body with a distinct and

pivotal role in our scheme of government. In the discharge of its awesome
functions as overseer of fair elections, administrator and lead implementor of laws
relative to the conduct of elections, it should not be stymied with restrictions that
would perhaps be justified in the case of an organization of lesser
responsibility.[103] It should be afforded ample elbow room and enough
wherewithal in devising means and initiatives that would enable it to accomplish
the great objective for which it was createdto promote free, orderly, honest and
peaceful elections. This is as it should be for, too often, Comelec has to make
decisions under difficult conditions to address unforeseen events to preserve the
integrity of the election and in the process the voice of the people. Thus, in the
past, the Court has steered away from interfering with the Comelecs exercise of its
power which, by law and by the nature of its office properly pertain to it. Absent,
therefore, a clear showing of grave abuse of discretion on Comelecs part, as here,
the Court should refrain from utilizing the corrective hand of certiorari to review,
let alone nullify, the acts of that body. This gem, while not on all fours with, is
lifted from, the Courts holding in an old but oft-cited case:

x x x We may not agree fully with [the Comelecs] choice of

means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere. Politics is a practical matter,
and political questions must be dealt with realisticallynot from the
standpoint of pure theory [or speculation]. x x x

xxxx

There are no ready-made formulas for solving public problems.

Time and experience are necessary to evolve patterns that will serve the
ends of good government. In the matter of the administration of the laws
relative to the conduct of elections, x x x we must not by any excessive
zeal take away from the [Comelec] the initiative which by constitutional
and legal mandates properly belongs to it. Due regard to the independent
character of the Commission x x x requires that the power of this court to
review the acts of that body should, as a general proposition, be used
sparingly, but firmly in appropriate cases.[104] x x x
The Court, however, will not indulge in the presumption that nothing would
go wrong, that a successful automation election unmarred by fraud, violence, and
like irregularities would be the order of the moment on May 10, 2010. Neither will
it guarantee, as it cannot guarantee, the effectiveness of the voting machines and
the integrity of the counting and consolidation software embedded in them. That
task belongs at the first instance to Comelec, as part of its mandate to ensure clean
and peaceful elections. This independent constitutional commission, it is true,
possesses extraordinary powers and enjoys a considerable latitude in the discharge
of its functions. The road, however, towards successful 2010 automation elections
would certainly be rough and bumpy. The Comelec is laboring under very tight
timelines. It would accordingly need the help of all advocates of orderly and honest
elections, of all men and women of goodwill, to smoothen the way and assist
Comelec personnel address the fears expressed about the integrity of the system.
Like anyone else, the Court would like and wish automated elections to succeed,
credibly.

WHEREFORE, the instant petition is hereby DENIED.

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,

vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,

vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates to the power
of the incumbent President of the Philippines to propose amendments to the present Constitution in
the absence of the interim National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling
for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve,
among other things, the issues of martial law, the I . assembly, its replacement, the powers of such
replacement, the period of its existence, the length of the period for tile exercise by the President of
his present powers.1

Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the
provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16,
1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No.
991, the full text of which (Section 4) is quoted in the footnote below.2

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033,
stating the questions to be submitted to the people in the referendum-plebiscite on October 16,
1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the
convening of the National Assembly evinces their desire to have such body abolished and replaced
thru a constitutional amendment, providing for a legislative body, which will be submitted directly to
the people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following amendments
to the Constitution? For the purpose of the second question, the referendum shall have the effect of
a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members
of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by
law, shall include the incumbent President of the Philippines, representatives elected from the
different regions of the nation, those who shall not be less than eighteen years of age elected by
their respective sectors, and those chosen by the incumbent President from the members of the
Cabinet. Regional representatives shall be apportioned among the regions in accordance with the
number of their respective inhabitants and on the basis of a uniform and progressive ratio while the
sectors shall be determined by law. The number of representatives from each region or sector and
the, manner of their election shall be prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shall have the
same functions, responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the members thereof. However, it shall not
exercise the power provided in Article VIII, Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and selection of
the members, convene the interim Batasang Pambansa and preside over its sessions until the
Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa
is organized and ready to discharge its functions and likewise he shall continue to exercise his
powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers
vested in the President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and
discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be
subject only to such disqualifications as the President (Prime Minister) may prescribe. The President
(Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime
Ministers as he may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial law shall have
been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a
threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may, in order to meet the exigency, issue the necessary decrees,
orders or letters of instructions, which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their functions,
powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commission on Elections
may be called at any time the government deems it necessary to ascertain the will of the people
regarding any important matter whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in
full force and effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that
they have been ratified by I majority of the votes cast in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of the October
1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without
force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the
Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on
Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October
16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent
President to exercise the constituent power to propose amendments to the new Constitution. As a
consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on
Elections, The Solicitor General principally maintains that petitioners have no standing to sue; the
issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the
transition period, only the incumbent President has the authority to exercise constituent power; the
referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-
44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention,
asserting that the power to propose amendments to, or revision of the Constitution during the
transition period is expressly conferred on the interim National Assembly under Section 16, Article
XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL
M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to
restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-
Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial Law, the
incumbent President cannot act as a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time for deliberation renders the
plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and
allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines
the right of suffrage to those citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito
V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos.
991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees
are of such nature-may be contested by one who will sustain a direct injuries as a in result of its
enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may
be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The
breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective
implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the
lawful expenditure of these amounts of public money sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits,
this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem
it sound to exercise that discretion affirmatively so that the authority upon which the disputed
Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside the
domain of judicial review. We disagree. The amending process both as to proposal and ratification,
raises a judicial question. 8This is especially true in cases where the power of the Presidency to initiate the of normally exercised
by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution
resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National
Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly
(Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to
constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed
amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of
the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed
as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section
2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be
heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also
of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power,
so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where
the vortex of the controversy refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of
the incumbent President in proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a constituent assembly. Whether the
amending process confers on the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the actuation of the President would
merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the
interpreter of that Constitution, can declare whether the procedure followed or the authority assumed
was valid or not.10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that
the question of the President's authority to propose amendments and the regularity of the procedure
adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear
Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act,
provided for the authority and procedure for the amending process when they ratified the present
Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the
proper subject of inquiry, not by the people themselves of course who exercise no power of judicial
but by the Supreme Court in whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to
and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference
of the Court's majority to treat such issue of Presidential role in the amending process as one of non-
political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue
on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973)
for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the
Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification
Cases12 involving the issue of whether or not the validity of Presidential Proclamation No. 1102.
announcing the Ratification by the Filipino people of the constitution proposed by the 1971
Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the
Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice
Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We
rejected the theory of the respondents therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed
new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed,
it partook of a political nature, and We unanimously declared that the issue was a justiciable one.
With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus
cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of
the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21,
1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs.
Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs.
Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The
return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was
decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in
support thereof are, however, substantially the same as those given in support on the political
question theory advanced in said habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and constitutionally untenable. As a
consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and
effect of a stare decisis which gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of
all its Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the electorate in an
election.
 SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory
Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of
normalcy and period of transition. In times of normally, the amending process may be initiated by the
proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2)
by a Constitutional Convention called by a vote of two-thirds of all the Members of the National
Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in
an election voted upon by a majority vote of all the members of the National Assembly. In times of
transition, amendments may be proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested
with that prerogative of discretion as to when he shall initially convene the interim National
Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional
Convention intended to leave to the President the determination of the time when he shall initially
convene the interim National Assembly, consistent with the prevailing conditions of peace and order
in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention,
revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene the interim National Assembly; it was so stated plainly by
the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately',
made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people themselves. In the plebiscite of
January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people
voted against the convening of the interim National Assembly. In the referendum of July 24, 1973,
the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the
interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened was eliminated, because some of
the members of Congress and delegates of the Constitutional Convention, who were deemed
automatically members of the I interim National Assembly, were against its inclusion since in that
referendum of January, 1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment
to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when
engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by
the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973
Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the
National Assembly). While ordinarily it is the business of the legislating body to legislate for the
nation by virtue of constitutional conferment amending of the Constitution is not legislative in
character. In political science a distinction is made between constitutional content of an organic
character and that of a legislative character'. The distinction, however, is one of policy, not of
law.17 Such being the case, approval of the President of any proposed amendment is a
misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary
cases of legislation. The President has nothing to do with proposition or adoption of amendments to
the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis government
today are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of
government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers. In most free states it has generally been
regarded as imperative that the total power of the government be parceled out among three mutually
independent branches executive, legislature, and judiciary. It is believed to be destructive of
constitutionalism if any one branch should exercise any two or more types of power, and certainly a
total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very
definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable
barrier to a decisive emergency action in behalf of the state and its independent existence. There
are moments in the life of any government when all powers must work together in unanimity of
purpose and action, even if this means the temporary union of executive, legislative, and judicial
power in the hands of one man. The more complete the separation of powers in a constitutional
system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is
evident in a comparison of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and executive is taken for
granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential dictatorship. The power of the state
in crisis must not only be concentrated and expanded; it must also be freed from the normal system
of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its
own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special
exigencies for which the legislative power had not provided. 22 The rationale behind such broad
emergency powers of the Executive is the release of the government from "the paralysis of
constitutional restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at.
That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory
Provisions, thus:23

The incumbent President of the Philippines shall initially convene the interim National
Assembly and shall preside over its sessions until the interim Speaker shall have
been elected. He shall continue to exercise his powers and prerogatives under the
nineteen hundred and thirty-five Constitution and the powers vested in the President
and the Prime Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister, who shall
then exercise their respective powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or

done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the ratification of
this Constitution, unless modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or other acts of the incumbent
President, or unless expressly and explicitly modified or repealed by the regular
National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the
Constitutional Convention, while giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be convened soon, would create a
vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking
powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing
Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a
period of time. The separation of executive and legislature ordained in the Constitution presents a
distinct obstruction to efficient crisis government. The steady increase in executive power is not too
much a cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve
rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war.
In short, while conventional constitutional law just confines the President's power as Commander-in-
Chief to the direction of the operation of the national forces, yet the facts of our political, social, and
economic disturbances had convincingly shown that in meeting the same, indefinite power should be
attributed to tile President to take emergency measures 25

IV
Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National
Assembly during the transition period. However, the initial convening of that Assembly is a matter
fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment,
the President opted to defer convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the
interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions).
Again, harking to the dictates of the sovereign will, the President decided not to call the interim
National Assembly. Would it then be within the bounds of the Constitution and of law for the
President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that
body's legislative functions? The answer is yes. If the President has been legitimately discharging
the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge
the function of that Assembly to propose amendments to the Constitution, which is but adjunct,
although peculiar, to its gross legislative power. This, of course, is not to say that the President has
converted his office into a constituent assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and only the Presidency and the Supreme
Court in operation, the urges of absolute necessity render it imperative upon the President to act as
agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by
its very constitution, the Supreme Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that actuality and decline to undertake
the amending process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to
end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce
into concrete forms the constant voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973 and
February 1975, the people had already rejected the calling of the interim National Assembly. The
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng
mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays,
about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment
of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting
of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on October 16 .28 The Batasang Bayan (legislative council)
created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members
of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to
the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial
law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the
people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the
National Referendum-Plebiscite on October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the
Philippines, a republican and unitary state, sovereignty "resides in the people and all government
authority emanates from them .30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their convictions
on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment."34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation
should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people
when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their

sovereign power as constitutional legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are the collated thoughts of the
sovereign will reduced only into enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the option of the people themselves
implemented only by the authority of the President. Indeed, it may well be said that the amending
process is a sovereign act, although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to
be continued? - is a referendum question, wherein the 15-year olds may participate. This was
prompted by the desire of the Government to reach the larger mas of the people so that their true
pulse may be felt to guide the President in pursuing his program for a New Order. For the
succeeding question on the proposed amendments, only those of voting age of 18 years may
participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18 years old and above
which will have valid bearing on the results. The fact that the voting populace are simultaneously
asked to answer the referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue,
which is of current one and submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily
dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of
voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen
years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in
another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes.38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely

consultative in character. It is simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of which is derived from or within the
totality of the executive power of the President.39 It is participated in by all citizens from the age of
fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts .40 A
"plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at least six
months preceding the election Literacy, property or any other substantive requirement is not
imposed. It is generally associated with the amending process of the Constitution, more particularly,
the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the
freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation
of Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled
voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total
suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes
all the embracing freedoms of expression and assembly The President himself had announced that
he would not countenance any suppression of dissenting views on the issues, as he is not interested
in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at
hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear
their adverse views on the proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter.43 Even government employees have been held by the
Civil Service Commission free to participate in public discussion and even campaign for their stand
on the referendum-plebiscite issues.44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free
debates or discussions on the referendum-plebiscite issues. The questions are not new. They are
the issues of the day. The people have been living with them since the proclamation of martial law
four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls:
"Under the old Society, 15 days were allotted for the publication in three consecutive issues of the
Official Gazette of the women's suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as
ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of
the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of the President and
Vice President, and the creation of the Commission on Elections, 20 days of publication in three
consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment,
an involved constitutional amendment affecting the economy as well as the independence of the
Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)."45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date
when the plebiscite shall be held, but simply states that it "shall be held not later than three months
after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States
Supreme court held that this matter of submission involves "an appraisal of a great variety of
relevant conditions, political, social and economic," which "are essentially political and not
justiciable." The constituent body or in the instant cases, the President, may fix the time within which
the people may act. This is because proposal and ratification are not treated as unrelated acts, but
as succeeding steps in a single endeavor, the natural inference being that they are not to be widely
separated in time; second, it is only when there is deemed to be a necessity therefor that
amendments are to be proposed, the reasonable implication being that when proposed, they are to
be considered and disposed of presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson,
"(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of
today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be
regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution as
well as set up the required machinery and prescribe the procedure for the ratification of his
proposals by the people?

3. Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando,
Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and
Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices
Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and
Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and
dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that
there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts
as to the power of the President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond
the competence and cognizance of this Court, Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's
lack of authority to exercise the constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient information and time to assure intelligent
consent or rejection under the standards set by this Court in the controlling cases of Gonzales,
supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr.
and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate
opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and
Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This
decision is immediately executory.

SO ORDERED.

Aquino, J, in the result.

Separate Opinions

CASTRO, C.J.:, concurring:

From the challenge as formulated in the three petitions at bar and the grounds advanced be the
Solicitor General in opposition thereto, as well as the arguments adduced by the counsels of the
parties at the hearing had on October 7 and 8, 1976, three vital issues readily project themselves as
the centers of controversy, namely:

(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political
or justiciable?

(2) During the present stage of the transition period, and under the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution as
well as set up the required machineries and prescribe the procedure for the ratification of his
proposals by the people?

(3) Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper, submission"

First Issue

The threshold question is not at all one of first impression Specifically on the matter of proposals to
amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced
the dictum that-

Proposal to amend the Constitution is a highly political function performed by the

Congress in its sovereign legislative capacity and committed to its charges by the
Constitution itself. The exercise of this power is even independent of any intervention
by the Chief Executive. If on grounds of expediency scrupulous attention of the
judiciary be needed to safeguard public interest, there is less reason for judicial
inquiry into the validity of a proposal than into that of a ratification.

In time, however, the validity of the said pronouncement was eroded. In the assessment of the Court
itself-
The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the
Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-
10520, February 28, 1957), and Macias vs. Commission on Elections (L-18684, September 14,
1961).

xxx xxx xxx

In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-

violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review,
and, to the extent this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the
latter should be deemed modified accordingly. The Members of the Court are unanimous on this
point." (Gonzales vs. Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774,
786-787).

The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when,
in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the Court
concurred in the view that the question of whether the 1973 Constitution was ratified in accordance
with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially
justiciable.

As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil. 1051)-

... the term 'political question' connotes, in legal parlance, what it means in ordinarily
parlance, namely, a question of policy in matters concerning the government of a
State, as a body politic. In other words, in the language of Corpus Juris Secundum
(supra), it refers to 'those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the
government.' It is concerned with issues dependent upon the wisdom, not legality, of
a particular measure.'

Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on
whether or not the prescribed qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly
those prescribed or imposed by the Constitution - would be set at naught." (Javellana vs. Executive
Secretary, supra).

So it is in the situation here presented. The basic issue is the constitutional validity of the presidential
acts of proposing amendments to the Constitution and of calling a referendum-plebiscite for the
ratification of the proposals made. Evidently, the question does not concern itself with the wisdom of
the exercise of the authority claimed or of the specific amendments proposed. Instead the inquiry vel
non is focused solely on the existence of the said power in the President - a question purely of
legality determinable thru interpretation and construction of the letter and spirit of the Constitution by
the Court as the final arbiter in the delineation of constitutional boundaries and the allocation of
constitutional powers.

For the Court to shun cognizance of the challenge herein presented, especially in these parlous
years, would be to abdicate its constitutional powers, shirk its constitutional responsibility, and deny
the people their ultimate recourse for judicial determination.

I have thus no hesitancy in concluding that the question here presented is well within the periphery
of judicial inquiry.

II

Second Issue

The main question stands on a different footing; it appears unprecedented both here and elsewhere.
Its solution, I believe, can be found and unraveled only by a critical assessment of the existing legal
order in the light of the prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally
or under normal conditions, a Constitution may be amended only in accord with the procedure set
forth therein. Hence, if there be any such prescription for the amendatory process as invariable there
is because one of the essential parts of a Constitution is the so-called "constitution of sovereignty"
which comprises the provision or provisions on the modes in accordance with which formal changes
in the fundamental law may be effected the same would ordinarily be the controlling criterion for the
validity of the amendments sought.

Unfortunately, however, during the present transition period of our political development, no express
provision is extant in the Constitution regarding the agency or agent by whom and the procedure by
which amendments thereto may be proposed and ratified fact overlooked by those who challenge
the validity of the presidential acts in the premises. This is so because there are at least two
distinctly in the transition from the old system of government under the 1935 Constitution to the new
one established by the 1973 Constitution.

The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to
the time the National Assembly is convened by the incumbent President and the interim President
and the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1]. The existence of this
stage as an obvious fact of the nation's political life was recognized by the Court in Aquino vs.
Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the
claim that, under the 1973 Constitution, the President was in duty bound to convene the interim
National Assembly soon after the Constitution took effect.

The second stage embraces the period from the date the interim National Assembly is convened to
the date the Government described in Articles VII to IX of the Constitution is inaugurated, following
the election of the members of the regular National Assembly (Article XVII, Section 1) and the
election of the regular President and Prime Minister,. This is as it should be because it is recognized
that the President has been accorded the discretion to determine when he shall initially convene the
interim National Assembly, and his decision to defer the convocation thereof has found
overwhelming support by the sovereign people in two previous referenda, therein giving reality to an
interregnum between the effectivity of the Constitution and the initial convocation of the interim
National Assembly, which interregnum, as aforesaid, constitutes the first stage in the transition
period.

Against this factual backdrop, it is readily discernible that neither of the two sets of provisions
embodied in the Constitution on the amendatory process applied during the said first stage. Thus,
Section 15, Article XVII (Transitory Provisions) provides-

"Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a
majority vote of all its Members, propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen hereof."

Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits the
application thereof to the second stage of the transition period, i.e.,., after the interim? National
Assembly shall have been convened and the interim Prime Minister shall have been chosen.

Upon the other hand, the provisions of Article XVI (Amendments), to wit-

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention.

(2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of ceiling such a convention to the electorate in an election.

SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision.

unequivocally contemplate amendments after the regular Government shall have become fully
operative, referring as they do to the National Assembly which will come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to
the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom
and in what manner such amendments may be proposed and ratified.

Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a mere
declaration of the traditions of a nation but more the embodiment of a people's hopes and
aspirations, its strictures are not unalterable. They are, instead, dynamic precepts intended to keep
in stride with and attuned to the living social organism they seek to fashion and govern. If it is
conceded that "the political or philosophical aphorism of one generation is doubted by the next and
entirely discarded by the third," then a Constitution must be able to adjust to the changing needs and
demands of society so that the latter may survive, progress and endure. On these verities, there can
be no debate.

During the first stage of the transition period in which the Government is at present - which is
understandably the most critical - the need for change may be most pressing and imperative, and to
disavow the existence of the right to amend the Constitution would be sheer political heresy. Such
view would deny the people a mechanism for effecting peaceful change, and belie the organic
conception of the Constitution by depriving it of its means of growth. Such a result obviously could
not have been intended by the framers of the fundamental law.

It seems, however, that the happenstance that the first period would come to pass before the
convocation of the interim National Assembly was not anticipated, hence, the omission of an express
mandate to govern the said situation in so far as amendments are concerned. But such omission
through inadvertence should not, because it cannot, negate the sovereign power of the people to
amend the fundamental charter that governs their lives and their future and perhaps even the very
survival of the nation.

Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the
intent was, instead, to provide a simpler and more expeditious mode of amending the Constitution
during the transition period. For, while under Article XVI thereof, proposals for amendment may be
made directly by the regular National Assembly by a vote of at least three-fourths of all its members,
under Section 15 of Article XVII, a bare majority vote of all the members of the National Assembly
would suffice for the purpose. The relaxation and the disparity in the vote requirement are revealing.
The can only signify a recognition of the need to facilitate the adoption of amendments during the
second stage of the transition period so that the interim National Assembly will be able, in a manner
of speaking, to iron out the kinks in the new Constitution, remove imperfections therein, and provide
for changed or changing circumstances before the establishment of the regular Government. In this
contest, therefore, it is inutile speculation to assume that the Constitution was intended to render
impotent or ar the effectuation of needful change at an even more critical period - the first stage.
With greater reason, therefore, must the right and power to amend the Constitution during the first
stage of te transition period be upheld, albeit within its express and implied constraints.

Neither can it be successfully argued, in the same context and in the present posture, that the
Constitution may be amended during the said first stage only by convening the interim National
Assembly. That is to say and require that he said stage must first be brought to an end before any
amendment may be proposed and ratified. Settled jurisprudence does not square with such a
proposition. As aptly noted in Aquino vs. Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim National Assembly because they could
not have foreseen how long the crises which impelled the proclamation and justify the continued
state of martial law would last. Indeed, the framers committed to the sound judgment is not subject
to judicial review, save possibly to determine whether arbitrariness has infected such exercise;
absent such a taint, the matter is solely in the keeping of the President. To thus content that only by
convening the interim National Assembly may the Constitution be amended at this time would
effectively override the judgement vested in the President, even in default of any he has acted
arbitrarily or gravely abuse his discretion. Furthermore, to sustain such a contention would not only
negate the mandate so resoundingly expressed by the people in two national referenda against the
immediate convening of the interim National Assembly, but as well deride their overwhelming
approval of the manner in which the President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the stature and force of law.

Given the constitutional stalemate or impasse spawned by these supervening developments, the
logical query that compels itself for resolution is: By whom, then, may proposals for the amendment
of the Constitution be made and in what manner may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be confuse with
legislative power in general because the prerogative to propose amendments to the Constitution is
not in any sense embraced within the ambit of ordinary law-making. Hence, there is much to
recommend the proposition that, in default of an express grant thereof, the legislature - traditionally
the delegated repository thereof - may not claim it under a general grant of legislative authority. In
the same vein, neither would it be altogether unassailable to say that because by constitutional
tradition and express allocation the constituent power under the Constitution is locate in the law-
making agency and at this stage of the transition period the law-making authority is firmly recognized
as being lodged in the President, the said constituent power should now logically be in the hands of
te President who may thus exercise it in place of the interim National Assembly. Instead,, as pointed
out in Gonzales vs. Commission on Elections, et al., supra, the power to amend the Constitution or
to propose amendments thereto

... is part of the inherent powers of the people - as the repository of sovereignty in a
republican state, such as ours - t o make, and, hence, to amend their own
Fundamental Law.

As such, it is undoubtedly a power that only the sovereign people, either directly by themselves or
through their chosen delegate, can wield. Since it has been shown that the people, inadvertently or
otherwise, have not delegated that power to inadvertently or otherwise, have not delegated that
power to any instrumentality during the current stage of our hegira from crisis to normalcy, it follows
of necessity that the same remains with them for them to exercise in the manner they see fit and
through the agency they choose. And, even if it were conceded that - as it is reputedly the rule in
some jurisdictions - a delegation of the constituent authority amounts to a complete divestiture from
the people of the power delegated which they may not thereafter unilaterally reclaim from the
delegate, there would be no violence donde to such rule, assuming it to be applicable here,
inasmuch as that power, under the environmental circumstance adverted to, has not been delegated
to anyone in the first place. The constituent power during the first stage of the transition period
belongs to and remains with the people, and accordingly may be exercised by them - how and when
- at their pleasure.

At this juncture, a flashback to the recent and contemporary political ferment in the country proves
revelatory. The people, shocked and revolted by the "obvious immorality" of the unabashed manner
by which the delegates to the Constitutional Convention virtually legislated themselves into office as
ipso facto members of the interim National Assembly by the mere fiat of voting for the transitory
provisions of the Constitution. and the stark reality that the unwieldy political monstrosity that the
interim Assembly portended to be would have proven to be a veritable drain on the meager financial
resources of a nation struggling for survival, have unequivocally put their foot down, as it were, on
the convocation thereof. But this patently salutary decision of the people proved to be double-edged.
It likewise bound the political machinery of the Government in a virtual straight-jacket and consigned
the political evolution of the nation into a state of suspended animation. Faced with the ensuing
dilemma, the people understandably agitated for a solution. Through consultations in the barangays
and sanggunian assemblies, the instrumentalities through which the people's voice is articulated in
the unique system of participatory democracy in the country today, the underpinnings for the
hastening of the return to constitutional normalcy quickly evolved into an overwhelming sentiment to
amend the Constitution in order to replace the discredited interim National Assembly with what the
people believe will be an appropriate agency to eventually take over the law-making power and thus
pave the way for the early lifting of martial rule. In pursuit of this sentiment, and to translate its
constraints into concrete action, the Pambansang Katipunan ng Barangay, the Pambansang
Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay the Lupong Tagapagpaganap
of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice,
have come forward with definitive proposals for the amendment of the Constitution, and, choosing
the President the only political arm of the State at this time through which that decision could be
implemented and the end in view attained as their spokesman, proposed the amendments under
challenge in the cases at bar.

In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted
to the people for their ratification in the forthcoming referendum-plebiscite are factually not of the
President; they are directly those of the people themselves speaking thru their authorized
instrumentalities. The President merely formalized the said proposals in Presidential Decree No.
1033. It being conceded in all quarters that sovereignty resides in the people and it having been
demonstrated that their constituent power to amend the Constitution has not been delegated by
them to any instrumentality of the Government during the present stage of the transition period of
our political development, the conclusion is ineluctable that their exertion of that residuary power
cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without
venturing to rule on whether or not the President is vested with constituent power as it does not
appear necessary to do so in the premises the proposals here challenged, being acts of the
sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable
not only because the President, in exercising said authority has acted as a mere alter ego of the
people who made the proposals, but likewise because the said authority is legislative in nature
rather than constituent.

III

Third Issue

Little need be said of the claimed insufficiency and impropriety of the submission of the proposed
amendments for ratification from the standpoint of time. The thesis cannot be disputed that a fair
submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened
on the merits or demerits of the amendments presented for their ratification or rejection. However,
circumstances there are which unmistakably demonstrated that the is met. Even if the proposal
appear to have been formalized only upon the promulgation of Presidential Decree No. 1033 on
September 22, 1976, they are actually the crystallization of sentiments that for so long have
preoccupied the minds of the people and their authorized representatives, from the very lowest level
of the political hierarchy. Hence, unlike proposals emanating from a legislative body, the same
cannot but be said to have been mulled over, pondered upon, debated, discussed and sufficiently
understood by the great masses of the nation long before they ripened into formal proposals.

Besides. it is a fact of which judicial notice may well be taken that in the not so distant past when the
1973 Constitution was submitted to the people for ratification, an all-out campaign, in which all the
delegates of the Constitutional Convention reportedly participated, was launched to acquaint the
people with the ramifications and working of the new system of government sought to be
inaugurated thereunder. It may thus well be assumed that the people in general have since
acquired, in the least, a working knowledge of the entirety of the Constitution. The changes now
proposed the most substantial of which being merely the replacement of the interim National
assembly with another legislative arm for the Government during the transition period until the
regular National Assembly shall have been constituted do not appear to be of such complexity as to
require considerable time to be brought home to the full understanding of the people. And, in fact,
the massive and wide-ranging informational and educational campaign to this end has been and still
is in full swing, with all the media the barangay, the civic and sectoral groups, and even the religious
all over the land in acting and often enthusiastic if not frenetic involvement.

Indeed, when the people cast their votes on October 16, a negative vote could very well mean an
understanding of the proposals which they reject; while an affirmative vote could equally be
indicative Of such understanding and/or an abiding credence in the fidelity with which the President
has kept the trust they have confided to him as President and administrator of martial rule

IV

Conclusion

It is thus my considered view that no question viable for this court to pass judgment upon is posed.
Accordingly, I vote for the outright dismissal of the three petitions at bar.

FERNANDO, J., concurring and dissenting:

These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections
continuing with the epochal resolution in Javellana v. Executive Secretary and followed successively
in three crucial decisions, Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v
Military Commission,5 manifest to the same degree the delicate and awesome character of the
function of judicial review. While previous rulings supply guidance and enlightenment, care is to be
taken to avoid doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times.
It is inappropriate to resolve the complex problems of a critical period without full awareness of the
consequences that flow from whatever decision is reached. Jural norms must be read in the context
of social facts, There is need therefore of adjusting inherited principles to new needs. For law, much
more so constitutional law, is simultaneously a reflection of and a force in the society that it controls.
No quality then can be more desirable in constitutional adjudication than that intellectual and
imaginative insight which goes into the heart of the matter. The judiciary must survey things as they
are in the light of what they must become It must inquire into the specific problem posed not only in
terms of the teaching of the past but also of the emerging political and legal theory, especially so
under a leadership notable for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind through that this Court must
be conscious of the risk inherent in its being considered as a mere subservient instrument of
government policy however admittedly salutary or desirable. There is still the need to demonstrate
that the conclusion reached by it in cases appropriate for its determination has support in the law
that must be applied. To my mind that was the norm followed, the conclusion reached being that the
three petitions be dismissed. I am in agreement. It is with regret however that based on my reading
of past decisions, both Philippine and American, and more specifically my concurring opinion in
Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion
of Justice Martin that there is concentration of power in the President during a crisis government.
Consequently, I cannot see my way clear to accepting the view that the authority to propose
amendments is not open to question. At the very least, serious doubts could be entertained on the
matter.

1. With due respect then, I have to dissociate myself from my brethren who would rule that
governmental powers in a crisis government, following Rossiter, "are more or less concentrated in
the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile leaves
me no choice.

It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to
point the way to what I did consider the appropriate response to the basic issue raised in the Aquino
and the other habeas corpus petitions resolved jointly, it was only in the latter portion of my opinion
that reference was made to United States Supreme Court pronouncements on martial law, at the
most persuasive in character and rather few in number "due no doubt to the, absence in the
American Constitution of any provision concerning it." 7 It was understandable then that it was only after the landmark
Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the subject." It was next
set forth that in the works on American constitutional law published in this century specially after the leading cases of cases Sterling v.
Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial law While it is the formulation of Willoughby
that for me is most acceptable, my opinion did take note that another commentator, Burdick, came out earlier with a similar appraisal.10 Thus:
"So called martial law, except in occupied territory of an enemy is merely the calling in of the aid of military forces by the executive, who is
charged with the enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not
suspend the civil law, though it may interfere with the exercise of one's ordinary rights. The right to call out the military forces to maintain
order and enforce the law is simply part of the Police power, It is only justified when it reasonably appears necessary, and only justifies such
acts as reasonably appear necessarily to meet the exigency, including the arrest, or in extreme cases the. killing of those who create the
disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly habit for acts done
beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the
military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection
or riot, be free by writ of habeas corpus." 11 When the opinion cited Willoughby's concept of martial law, stress was laid on his being "Partial
to the claims of liberty."12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly speaking, no such
thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are,
indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive
to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment not
commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the authorities
stating substantially this doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise cited: "Martial law
proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the execution
of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military power to assist him
in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights of the
individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his stature unchanged."14

The conclusion reached by me as to the state of American federal law on the question of martial law
was expressed thus: 4'1 It is readily evident that even when Milligan supplied the only authoritative
doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after
Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach
becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this
summary of what he considers the present state of American law: 'The Milligan and Duncan cases
show plainly that martial law is the public law of necessity. Necessities alone calls it forth, necessity
justifies its exercise; and necessities measures the extended degree to which it may be It is, the high
Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of
the citizen are concerned, may, never be pushed beyond what the exigency requires. If martial law
rule survive the necessities on which alone it rests, for even a single minute it becomes a mere
exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a
number of decisions, including one the highest Court, went or on the theory that the executive had a
free hand in taking martial law measures. Under them, it has been widely supposed that in
proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny.
Sterling v. Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness
derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal
or property rights-normally beyond the scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the executive's ipse dixit is not of itself
conclusive of the necessity.'"15

There was likewise an effort on my part to show what for me is the legal effect of martial law being
expressly provided for in the Constitution rather than being solely predicated on the common law
power based on the urgent need for it because of compelling circumstances incident to the state of
actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in the
Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan,
which furnished the foundation for Sterling and Duncan had its roots in the English common law.
There is pertinence therefore in ascertaining its significance under that system. According to the
noted English author, Dicey: 'Martial law,' in the proper sense of that term, , in which - it means the
suspension of ordinary law and the temporary government of a country or parts of it be military
tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France
the "Declaration of the State of Siege," under which the authority ordinarily vested in the civil power
for the maintenance of order and police passes entirely to the army (autorite militaire). This is an
unmistakable proof of the permanent supremacy of the law under our constitution. There was this
qualification: 'Martial law is sometimes employed as a name for the common law right of the Crown
and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any
violent resistance to the law. This right, or power, is essential to the very existence of orderly
government, and is most assuredly recognized in the most ample manner by the law of England. It is
a power which has in itself no special connection with the existence of an armed force. The Crown
has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier,
whether what is called a servant of the government,' such for example as a policeman, or a person
in no way connected with the administration, not only has the right, but is, as a matter of legal duty,
bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the
persons who, as being specially employed in the maintenance of order, are most generally called
upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the
suppression of riots."16

Commitment to such an approach results in my inability to subscribe to the belief that martial law in
terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification
for the concentration of powers in the Executive during periods of crisis. The better view, considering
the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan
v. Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are
indispensable to our government. 17 If there has been no observance of such a cardinal concept at
the present, it is due to the fact that before the former Congress could meet in regular session anew,
the present Constitution was adopted, abolishing it and providing for an interim National Assembly,
which has not been convened.18 So I did view the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first
chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a device
designed for use in the crisis of invasion or rebellion. It may be most precisely defined as an
extension of military government to the civilian population, the substitution of the will of a military
commander for the will of the people's elected government."19Since, for me at least, the Rossiter
characterization of martial law has in it more of the common law connotation, less than duly mindful
of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with
emergency conditions in times of grave danger, but always subject to attendant limitations in
accordance with the fundamental postulate of a charter's supremacy, I felt justified in concluding:
"Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the
Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty
possess relevance. lt cannot be said that the martial rule concept of Rossiter, latitudinarian in scope,
has been adopted, even on the assumption that it can be reconciled with our Constitution. What is
undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was
precisely based on the Constitution and that the validity of acts taken there under could be passed
upon by the Supreme court. For me that is quite reassuring, persuaded as I am likewise that the
week- of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on
freedom."20

3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the
opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice
Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or
administrator of martial law, the incumbent President of the Philippines can reclamations, orders and
decrees during the period Martial Law essential to the security and preservation of the Republic, to
the defense of the political and social liberties of the people and to the institution of reforms to
prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to
meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all
nations including highly developed countries." 21 To that extent, Rossiter's view mainly relied upon,
now possesses Juristic significant in this jurisdiction. What, for me at least, gives caused for concern
is that with the opinion of the Court this intrusion of what I would consider an alien element in the
limited concept of martial law as set forth in the Constitution would be allowed further incursion into
the corpus of the law, with the invocation of the view expressed in the last chapter of his work
approving tile "concentration of governmental power in a democracy [as] a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers." 22 It is to the credit of the late
Professor Rossiter as an objective scholar that in the very same last chapter, just three pages later,
he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional
Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a
step which must always be feared and sometimes bitterly resisted, for it is at once an admission of
the incapacity of democratic institutions to defend the order within which they function and a too
conscious employment of powers and methods long ago outlawed as destructive of constitutional
government. Executive legislation, state control of popular liberties, military courts, and arbitrary
executive action were governmental features attacked by the men who fought for freedom not
because they were inefficient or unsuccessful, but because they were dangerous and oppressive.
The reinstitution of any of these features is a perilous matter, a step to be taken only when the
dangers to a free state will be greater if the dictatorial institution is not adopted."23

4. It is by virtue of such considerations that I find myself unable to share the view of those of my
brethren who would accord recognition to the Rossiter concept of concentration of governmental
power in the Executive during periods of crisis. This is not to lose sight of the undeniable fact that in
this country through the zeal, vigor, and energy lavished on projects conducive to the general
welfare, considerable progress has been achieved under martial rule. A fair summary may be found
in a recent address of the First Lady before the delegates to the 1976 international Monetary Fund-
World Bank Joint Annual Meeting: "The wonder is that so much has been done in so brief a time.
Since September 1972, when President Marcos established the crisis government, peace and order
have been restored in a country once avoided as one of the most unsafe in the world. We have
liberated millions of Filipino farmers from the bondage of tenancy, in the most vigorous and
extensive implementation of agrarian reform."24Further, she said: "A dynamic economy has replaced
a stagnant order, and its rewards are distributed among the many, not hoarded by a few. Our foreign
policy, once confined by fear and suspicion to a narrow alley of self-imposed isolation, now travels
the broad expressways of friendship and constructive interaction with the whole world, these in a
new spirit of confidence and self-reliance. And finally, forced to work out our own salvation, the
Filipino has re-discovered the well-springs of his strength and resilience As Filipinos, we have found
our true Identity. And having broken our crisis of Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things. President Marcos
accordingly has not been hesitant in giving utterance to his conviction that full implementation of the modified parliamentary system under the
present Constitution should not be further delayed. The full restoration of civilian rule can thus be expected. That is more in accord with the
imperatives of a constitutional order. It should not go unnoticed either that the President has referred to the present regime as one of
"constitutional authoritarianism." That has a less objectionable ring, authority being more Identified with the Idea of law, as based on right,
the very antithesis of naked force, which to the popular mind is associated with dictatorship, even if referred to as "constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while
no doubt a partisan of d strong Presidency, was not averse to constitutional restraints even during
periods of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the
Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as
one in which the ordinary law, as administered by the ordinary courts, is superseded for the time
being by the will of a military commander. It follows that, when martial law is instituted under national
authority, it rests ultimately on the will of the President of the United States in his capacity as
Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the
record of actual practice fails often to support the niceties of theory. Thus, the employment of the
military arm in the enforcement of the civil law does not invariably, or even usually, involve martial
law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at
the disposal and direction of the civil authorities as a kind of supplementary police, or posse
comitatus on the other hand be reason of the discretion that the civil authorities themselves are apt
to vest in the military in any emergency requiring its assistance, the line between such an
employment of the military and a regime of martial law is frequently any but a hard and fast one. And
partly because of these ambiguities the conception itself of martial law today bifurcates into two
conceptions, one of which shades off into military government and the other into the situation just
described, in which the civil authority remains theoretically in control although dependent on military
aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the
privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although
other characteristics of martial law were generally absent."26
It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I
cannot yield assent to the Rossiter view of concentration of governmental powers in the Executive
during martial law.

5 There is necessity then, for me at least, that the specific question raised in all three petitions be
squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed
concerns the boundaries of the power of the President during this period of martial law, more
precisely whether it covers proposing amendments to the Constitution. There is the further
qualification if the stand of respondents be taken into account that the interim National Assembly has
not been convened and is not likely to be called into session in deference to the wishes of the people
as expressed in three previous referenda. It is the ruling of the majority that the answer be in the
affirmative, such authority being well within the area of presidential competence. Again I find myself
unable to join readily in that conviction. It does seem to me that the metes and bounds of the
executive domain, while still recognizable, do appear blurred. This is not to assert that there is
absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle
that underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative
prerogative by the President as long as the interim National Assembly is not For me, the stage of
certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a
constitutional deficiency consisting in the absence of any constituent power on the part of the
President, the express provision of the Constitution conferring it on the by team National
Assembly.27 The learned advocacy reflected in the pleadings as well as the oral discourse of Solicitor
General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino doctrine
as to the possession of legislative competence by the President during this period of transition with
the interim lawmaking body not called into session be thus expanded. The majority of my brethren
took that step. I am not prepared to go that far. I will explain why.

The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the
distinction between matters legislative and constituent. That is implicit in the treatise on the 1935
Constitution by Justices Malcolm and Laurel In their casebook published the same year, one of the
four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which
categorically distinguished between constituent and legislative powers. Dean Sinco, a well-known
authority on the subject, was quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments, it would be outside its authority
to assume that power. Congress may not claim it under the general grant of legislative power for
such grant does not carry with it the right 'to erect the state, institute the form of its government,'
which is considered a function inherent in the people. Congressional law- making authority is limited
to the power of approving the laws 'of civil conduct relating to the details and particulars of the
government instituted,' the government established by the people."12 If that distinction be preserved,
then for me the aforecited Aquino decision does not reach the heart of the matter. Nor is this all. In
the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro,
support for the ruling that the President cannot be deemed as devoid of legislative power during this
transition stage is supplied by implications from explicit constitutional provisions.13 That is not the
case with the power to propose amendments. It is solely the interim National Assembly that is
mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to entertaining
doubts rather than registering a dissent on this point, it is solely because of the consideration,
possessed of weight and significance, that there may be indeed in this far-from-quiescent and static
period a need for al. amendments. I do not feel confident therefore that a negative vote on my part
would be warranted. What would justify the step taken by the President, even if no complete
acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is
that as noted in both qualified concurrences by Justices Teehankee and Munoz Palma in Aquino, as
far as the legislative and appropriately powers are concerned, is the necessity that unless such
authority be recognized, there may be paralyzation of governmental activities, While not squarely
applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose
amendments is concerned.

Thus I would confine myself to the expression of serious doubts on the question rather than a
dissent.

6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the
petitions be dismissed. That is to accord respect to the principle that judicial review goes no further
than to checking clear infractions of the fundamental law, except in the field of human rights where a
much greater vigilance is required, That is to make of the Constitution a pathway to rather than a
barrier against a desirable objective. -As shown by my concurring and dissenting opinion in
Tolentino Commission on Elections '34 a pre-martial law decision, the fundamental postulate that
sovereignty resides in the people exerts a compelling force requiring the judiciary to refrain as much
as possible from denying the people the opportunity to make known their wishes on matters of the
utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified
in that conviction by the teaching of persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona v.
Castillo,17 Which I consider applicable to the present situation. These are his words: "It is well
settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion
of the courts, to be exercised on equitable principles, and that said writs should be issued when the
right to the relief is clear * * by As he noted in his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while petitioner was sustained in his stand, no injunction was
issued. This was evident in the dispositive portion where judgment was rendered "declaring that
respondent Executive Secretary had and has no power to authorize the importation in question; that
he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law
and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for
must be and is, accordingly, denied." 40 With the illumination thus supplied, it does not necessarily
follow that even a dissent on my part would necessarily compel that I vote for the relief prayed for.
Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for
me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of
presidential power be accepted in their entirety, however, there is still discretion that may be
exercised on the matter, prohibition being an equitable remedy. There are, for me, potent
considerations that argue against acceding to the plea. With the prospect of the interim National
Assembly being convened being dim, if not non- existent, if only because of the results in three
previous referenda, there would be no constitutional agency other than the Executive who could
propose amendments, which, as noted. may urgently press for adoption. Of even greater weight, to
my mind, is the pronouncement by the President that the plebiscite is intended not only to solve a
constitutional anomaly with the country devoid of a legislative body but also to provide. the
machinery be which the termination of martial law could be hastened. That is a consummation
devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction
they would pose may be fraught with pernicious consequences. It may not be amiss to refer anew to
what I deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the
present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v.
Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and
my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in their
keeping. The role of leadership is not to be minimized. It is crucial it is of the essence. Nonetheless,
it is their will, if given expression in a manner sanctioned by law and with due care that there be no
mistake in its appraisal, that should be controlling. There is all the more reason then to encourage
their participation in the power process. That is to make the regime truly democratic. Constitutional
orthodoxy requires, however, that the fundamental law be followed. So I would interpret
Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47

7. There is reassurance in the thought that this Court has affirmed its commitment to the principle
that the amending process gives rise to a justiciable rather than a political question. So, it has been
since the leading case of Gonzales v. Commission on Election S.48 It has since then been followed in
Tolentino v. Commission on Elections 49 Planas v. Commission on Elections," and lastly, in Javellana
v. The Executive Secretary This Court did not heed the vigorous plea of the Solicitor General to
resurrect the political question doctrine announced in Mabanag v. Lopez Vito. 52 This is not to deny
that the federal rule in the United States as set forth in the leading case of Coleman v. Miller
, 53 a 1939 decision, and relatively recent State court decisions, supply ammunition to such a
contention.,51 That may be the case in the United States, but certainly not in this jurisdiction.
Philippine constitutional tradition is to the contrary. It can trace its origin to these words in the
valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto:
"It is one of the paradoxes a democracy that the people of times place more confidence in
instrumentalities of the State other than those directly chosen by them for the exercise of their
sovereignty It can be said with truth, therefore, that there has invariably been a judicial predisposition
to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did
exercise at times creative power. It has to that extent participated in the molding of policy, It has
always recognized that in the large and undefined field of constitutional law, adjudication partakes of
the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against
the pressure of political forces if they are bent in other directions. it does not follow that it should not
contribute its thinking to the extent that it can. It has been asked, it will continue to be asked, to
decide momentous questions at each critical stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of
transformation and change. A society in flux calls for dynamism in "he law, which must be
responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This Court
then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the wasteland
of meaningless abstractions. It must face stubborn reality. It has to have a feel for the complexities of
the times. This is not to discount the risk that it may be swept too far and too fast in the surge of
novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored. History still
has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot
simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant
dialectic of what appears to be a splintered society. It should strive to be a factor for unity under a
rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of
such considerations that I did strive for a confluence of principle and practicality. I must confess that
I did approach the matter with some misgivings and certainly without any illusion of omniscience. I
am comforted by the thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by
my studies on the subject of constitutional law and, much more so, by previous judicial opinions to
concur in the dismissal of the petitions. If I gave expression to byes not currently fashionable, it is
solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of' the social
and economic reforms so needed by the troubled present that have been introduced and
implemented. There is no thought then of minimizing, much less of refusing to concede, the
considerable progress that has been made and the benefits that have been achieved under this
Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the
adherence to the fundamental principle of popular sovereignty which, to be meaningful however,
requires both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is
fitting and proper that a distinction was made between two aspects of the coming poll, the
referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the
Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino v.
Commission on Elections,56 full respect for free speech and press, free assembly and free
association. There should be no thought of branding the opposition as the enemy and the
expression of its views as anathema, Dissent, it is fortunate to note, has been encouraged. It has not
been Identified with disloyalty. That ought to be the case, and not solely due to presidential decrees.
Constructive criticism is to be welcomed not so much because of the right to be heard but because
there may be something worth hearing. That is to ensure a true ferment of Ideas, an interplay of
knowledgeable minds. There are though well- defined limits, One may not advocate disorder in the
name of protest, much less preach rebellion under the cloak of dissent.. What I mean to stress is
that except on a showing of clear and present danger, there must be respect for the traditional
liberties that make a society truly free.

TEEHANKEE, J., dissenting:

1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to
grant the petitions for the following reasons and considerations: 1. It is undisputed that neither the
1935 Constitution nor the 1973 Constitution grants to the incumbent President the constituent power
to propose and approve amendments to the Constitution to be submitted to the people for ratification
in a plebiscite. The 1935 Constitution expressly vests the constituent power in Congress, be a three-
fourths vote of all its members, to propose amendments or call a constitutional convention for the
purpose The 1973 Constitution expressly vests the constituent power in the regular National
Assembly to propose amendments (by a three-fourths vote of all its members) or "call a
constitutional convention" (by a two-thirds vote of all its members) or "submit the question of calling
such convention to the electorate in an election" (by a majority vote of all its members ) .2

The transitory provisions of the 1973 Constitution expressing vest the constituent power during the
period of transition in the interim National Assembly "upon special call be the Prime Minister (the
incumbent President 3)... by a majority ore of all its members (to) propose amendments."

Since the Constitution provides for the organization of the essential departments of government,
defines and delimits the powers of each and prescribes the manner of the exercise of such powers,
and the constituent power has not been granted to but has been withheld from the President or
Prime Minister, it follows that the President's questioned decrease proposing and submitting
constitutional amendments directly to the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis.

2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In
therein declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in
calling a plebiscite with the general elections scheduled for November 8, 1971 for the purpose of
submitting for the people's ratification an advance amendment reducing the voting age from 21 years
to 18 years, and issuing writs of prohibition and injunction against the holding of the plebiscite, this
Court speaking through Mr. Justice Barredo ruled that --The Constitutional provisions on
amendments "dealing with the procedure or manner of amending the fundamental law are binding
upon the Convention and the other departments of the government, (land) are no less binding upon
the people

As long as an amendment is formulated and submitted under the aegis of the

present Charter, any proposal for such amendment which is not in conformity with
the letter, spirit and intent of the Charter for effecting amendments, cannot receive
the sanction of this Court ;8

The real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their decision
on the proposed amendments, if only because it is evident that the very Idea of departing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of
the rule of law,"; 9 and

-Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the
proposed amendments and the manner of its submission to the people for ratification or rejection"
did not "conform with the mandate of the people themselves in such regard, as expressed in the
Constitution itself', 10 i.e. the mandatory requirements of the amending process as set forth in the
Article on Amendments.

3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is clear that where
the proposed amendments are violative of the Constitutional mandate on the amending process not
merely for being a "partial amendment" of a "temporary or provisional character" (as in Tolentino) but
more so for not being proposed and approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive provision that it is only the
interim National Assembly, upon special call of the interim Prime Minister, bu a majority vote of all its
members that may propose the amendments, the Court must declare the amendments proposals
null and void.

4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary

means" 11 but only by the particular mode and manner prescribed therein by the people. As
stressed by Cooley, "by the Constitution which they establish, (the people) not only tie up the hands
of their official agencies but their own hands as well; and neither the officers of the State, nor the
whole people as an aggregate body, are at liberty to take action in opposition to this fundamental
law." 12

The vesting of the constituent power to propose amendments in the legislative body (the regular
National Assembly) or the interim National Assembly during the transition period) or in a
constitutional convention called for the purpose is in accordance with universal practice. "From the
very necessity of the case" Cooley points out "amendments to an existing constitution, or entire
revisions of it, must be prepared and matured by some body of representatives chosen for the
purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed
alterations, and there seems to be no feasible mode by which an expression of their will can be
obtained, except by asking it upon the single point of assent or disapproval." This body of
representatives vested with the constituent - power "submits the result of their deliberations" and
"puts in proper form the questions of amendment upon which the people are to pass"-for ratification
or rejection.13

5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be
desired" and in denying reconsideration in paraphrase of the late Claro M. Recto declared that "let
those who would put aside, invoking grounds at best controversial, any mandate of the fundamental
purportedly in order to attain some laudable objective bear in mind that someday somehow others
with purportedly more laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of justifying deviations
from the requirements of the Constitution the victims of their own folly."

This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting
opinion in the Ratification cases 14 that "we will be opening the gates for a similar disregard to the
Constitution in the future. What I mean is that if this Court now declares that a new Constitution is
now in force because the members of the citizens assemblies had approved said new Constitution,
although that approval was not in accordance with the procedure and the requirements prescribed in
the 1935 Constitution, it can happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and
then said proposed amendments is submitted to the people in any manner and what will matter is
that a basis is claimed that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government."

6. It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino
(and without mustering the required majority vote to so overrule) to accept the proposed;
amendments as valid notwithstanding their being "not in conformity with the letter, spirit and intent of
the provision of the Charter for effecting amendments" on the reasoning that "If the President has
been legitimately discharging the legislative functions of the interim National Assembly, there is no
reason why he cannot validly discharge the functions."15

In the earlier leading case of Gonzales vs. Comelec16, this Court speaking through now retired Chief
Justice Roberto Concepcion, pointer out that "Indeed, the power to Congress"17 or to the National
Assembly.18 Where it not for the express grant in the Transitory Provisions of the constituent power to the interim National Assembly, the
interim National Assembly could not claim the power under the general grant of legislative power during the transition period.

The majority's ruling in the Referendum cases19 that the Transitory Provision in section 3(2)
recognized the existence of the authority to legislate in favor of the incumbent President during the
period of martial law manifestly cannot be stretched to encompass the constituent power as
expressly vested in the interim National Assembly in derogation of the allotment of powers defined in
the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of
constitutional law, 20the contituent power has been lodged by the sovereign power of the people with
the interim National Assembly during the transition period and there it must remain as the sole
constitutional agency until the Constitution itself is changed.

As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral
Commissioner21, "(T)he Constitution sets forth in no uncertain language and restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by which
to direct the course of government along constitutional channels, for then the distribution of powers
sentiment, and the principles of good government mere political apothegms. Certainly, the limitations
and restrictions embodied in our Constitution are real as they should be in any living Constitution".

7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the people
against the convening of the interim National Assembly and to have no elections for "at least seven
(7) years" Concededly could not ament the Constitution insofar as the interim National Assembly is
concerned (since it admittendly came into existence "immediately" upon the proclamation of
ratification of the 1973 Constitution), much less remove the constituent power from said interim
National Assembly.

As stressed in the writer's separate opinion in the Referendum cases22, "(W)hile it has been
advanced that the decision to defer the initial convocation of the interim National Assembly was
supported by the results of the referendum in January, 1973 when the people voted against the
convening of the interim National Assembly for at least seven years, such sentiment cannot be given
any legal force and effect in the light of the State's admission at the hearing that such referendums
are merely consultative and cannot amend the Constitution or Provisions which call for the
'immediate existence' and 'initial convening of the interim National Assembly to 'give priority to
measures for the orderly transition from the presidential to the parliamentary system' and the other
urgent measures enumerated in section 5 thereof".

While the people reportedly expressed their mandate against the convening of the interim National
Assembly to dischange its legislative tasks during the period of transition under martial law, they
certainly had no opportunity and did not express themselves against convening the interim National
Assembly to discharge the constituent power to propose amendments likewise vested in it by the
people's mandate in the Constitution.

In point of fact, when the holding of the October 16, 1976 referendum was first announced, the
newspapers reported that among the seven questions proposed by the sanggunian and barangay
national executive committies for the referendum was the convening of the interim National
Assembly.23

It was further reported that the proposals which were termed tentative "will be discussed and studied
by (the President), the members of the cabinet, and the security council" and that the barangays felt,
notwithstanding the previous referenda on the convening of the interim National Assembly that "it is
time to again ask the people's opinion of this matter "24

8. If proposals for constitutional amendments are now deemed necessary to be discussed and
adopted for submittal to the people, strict adherence with the mandatory requirements of the
amending process as provided in the Constitution must be complied with. This means, under the
teaching of Tolentino that the proposed amendments must validly come from the constitutional
agency vested with the constituent power to do so, namely, the interim National Assembly, and not
from the executive power as vested in the Prime Minister (the incumbent President) with the
assistance of the Cabinet 25 from whom such power has been withheld.

It will not do to contend that these proposals represent the voice of the people for as was aptly
stated by Cooley "Me voice of the people, acting in their sovereign capacity, can be of legal force
only when expressed at the times and under the conditions which they themselves have prescribed
and pointed out by the Constitution. ... ."26

The same argument was put forward and rejected by this Court in Tolentino which rejected the
contention that the "Convention being a legislative body of the highest order (and directly elected by
the people to speak their voice) is sovereign, in as such, its acts impugned by petitioner are beyond
the control of Congress and the Courts" and ruled that the constitutional article on the amending
process" is nothing more than a part of the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said, "The Constitution may be amended,
but it is our will that the amendment must be proposed and submitted to Us for ratification only in the
manner herein provided'".27

This Court therein stressed that "This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation. Constitution making is the most valued
power, second to none, of the people in a constitutional democracy such as the one our founding
fathers have chosen for this nation, and which we of the succeeding generations generally cherish.
And because the Constitution affects the lives, fortunes, future and every other conceivable aspect
of the lives of all the people within the country and those subject to its sovereignity, ever constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation;" and that "written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment."28

9. The convening of the interim National Assembly to exercise the constituent power to proposed
amendments is the only way to fulfill the express mandate of the Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the setting as in of a
Comelec resolution banning the use of political taped jingles by candidates for Constitutional
Convention delegates int he special 1970 elections, "the concept of the Constitution as the
fundamental law, setting forth the criterion for the validity of any public act whether proceeding from
the highest official or the lowest functionary, is a postulate of our system of government. That is to
amnifst fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the
legal heirarchy. The three departments of government in the discharge of the functions with which it
is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must
be observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on its
authority, whether substantive or formal, be transcended. The Presidency in the execution of the
laws cannot ignore of disregard what it ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is called upon the maintain inviolate what is decreed by the
fundamental law."
This is but to give meaning to the plan and clear mandate of section 15 of the Transitory Provisions
(which allows of no other interpretation) that during the stage of transition the interim National
Assembly alone exercises the constituent power to propose amendments, upon special call therefor.
This is reinforced by the fact that the cited section does not grant to the regular National Assembly of
calling a constitutional convention, thus expressing the will of the Convention (and presumably of the
people upon ratification) that if ever the need to propose amendments arose during the limited
period of transition, the interim National Assembly alone would discharge the task and no
constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to propose
amendments, among them its own abolition, (P24 million annually in salaries alone for its 400
members at P600,000.00 per annum per member, assuming that its deliberations could last for one
year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar argument on
the costs of holding a plebiscite separately from the general elections for elective officials) that "it is a
matter of public knowledge that bigger amounts have been spent or thrown to waste for many lesser
objectives. ... Surely, the amount of seventeen million pesos or even more is not too much a price to
pay for fealty and loyalty to the Constitution ... " 30 and that "while the financial costs of a separate
plebiscite may be high, it can never be as much as the dangers involved in disregarding clear
mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial
costs shall deter Us from adherence to the requirements of the Constitution".11

10. The imposition of martial law (and "the problems of rebellion, subversion, secession, recession,
inflation and economic crisis a crisis greater than war") 32 cited by the majority opinion as justifying
the concentration of powers in the President, and the recognition now of his exercising the
constituent power to propose amendments to the Fundamental Law "as agent for and in behalf of
the people"33 has no constitutional basis.

In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras reaffirmed for the Court
the principle that emergency in itself cannot and should not create power. In our democracy the
hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their
faithful 'Adherence to the Constitution".

The martial law clause of the 1973 Constitution found in Article IX, section 12 , as stressed by the
writer in his separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII,
section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only 'in case of
invasion, resurrection or rebellion, or imminent danger thereof, when the public safety requires it and
hence the use of the legislative power or more accurately 'military power' under martial rule is limited
to such necessary measures as will safeguard the Republic and suppress the rebellion (or
invasion)". 35

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the
Referendum Cases to be the recognition or warrant for the exercise of legislative power by the
President during the period of martial law is but a transitory provision. Together with the martial law
clause, they constitute but two provisions which are not to be considered in isolation from the
Constitution but as mere integral parts thereof which must be harmonized consistently with the entire
Constitution.

As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every
section and clause. If different portions seem to conflict, the courts must harmonize them, if
practicable, and must lean in favor of a construction which will render every word operative, rather
than one which may make some words Idle and nugatory.

This rule is applicable with special force to written constitutions, in which the people
will be presumed to have expressed themselves in careful and measured terms,
corresponding with the immense importance of the powers delegated, leaving as little
as possible to implication. It is scarcelly conceivable that a case can arise where a
court would bye justified in declaring any portion of a written constitution nugatory
because of ambiguity. One part may qualify another so as to restrict its operation, or
apply it otherwise than the natural construction would require if it stood by itself; but
one part is not to be allowed to defeat another, if by any reasonable construction the
two can be made to stand together. 36

The transcendental constituent power to propose and approve amendments to the Constitution as
well as set up the machinery and prescribe the procedure for the ratification of his proposals has
been withheld from the President (Prime Minister) as sole repository of the Executive Power,
presumably in view of the immense powers already vested in him by the Constitution but just as
importantly, because by the very nature of the constituent power, such amendments proposals have
to be prepared, deliberated and matured by a deliberative assembly of representatives such as the
interim National Assembly and hence may not be antithetically entrusted to one man.

Former Chief Justice Roberto Concepcion had observed before the elevation of the l971
Constitutional Convention that the records of past plebiscites show that the constitutional agency
vested with the exercise of the constituent power (Congress or the Constitutional Convention) really
determined the amendments to the Constitution since the proposals were invariably ratified by the
people 37 thus: "although the people have the reserved power to ratify or reject the action taken by
the Convention, such power is not, in view of the circumstances attending its exercise, as effective
as one might otherwise think: that, despite the requisite ratification by the people, the actual contents
of our fundamental law will really be determined by the Convention; that, accordingly the people
should exercise the greatest possible degree of circumspection in the election of delegates thereto
... "38

12. Martial law concededly does not abrogate the Constitution nor obliterate its constitutional
boundaries and allocation of powers among the Executive, Legislative and Judicial Departments. 39

It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject
to the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers
that threaten it. Such premise imposes constraints and limitations. For the martial law regime fulfills
the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by
reason of such measures the Republic is so transformed that it is changed in its nature and
becomes a State other than republican, then martial law is a failure; worse, martial law would have
become the enemy of the Republic rather than its defender and preserver."40

II. On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned
presidential decrees: let it be underscored that the Court has long set at rest the question.

The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission
when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic phrase" that "we must
never forget that it is a Constitution we are expounding" and declared the Court's "solemn and
sacred" constitutional obligation of judicial review and laid down the doctrine that the Philippine
Constitution as "a definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments . . . but only asserts the solemn and sacred obliteration entrusted to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which the instrument secures and guarantees to
them".

At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e.
questions which are intended by the Constitutional and relevant laws to be conclusively determined
by the "political", i.e. branches of government (namely, the Executive and the Legislative) are outside
the Court's jurisdiction. 41

Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino43 (by the required constitutional
majority), the Court has since consistently ruled that when proposing and approving amendments to
the Constitution, the members of Congress. acting as a constituent assembly or the members of the
Constitutional Convention elected directly for the purpose by not have the final say on whether or not
their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that outs is it government of lawsom not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution
expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite
the eminently political character of treaty-making power".44

As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary 45 (by a majority
vote), "when the grant of power is qualified, conditional or subject to limitations. the issue on whether
or not the prescribed qualifications or conditions have been met, or the limitations by expected, is
justiciable or non-political, the crux of the problem being one of legality or validity of the contested
act, not its wisdom Otherwise, said qualifications, conditions and limitations-particularly those
prescribed or imposed by the Constitution would be set at naught".
The fact that the proposed amendments are to be submitted to the people for ratification by no
means makes the question political and non- justiciable since as stressed even in Javellana the
issue of validity of the President's proclamation of ratification of the Constitution presented a
justiciable and non-political question

Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the
Constitutional Convention called fol- the purpose, in proposing amendments to the people for
ratification followed the constitutional procedure and on the amending process is perforce a
justiciable question and does not raise a political question of police or wisdom of the proposed
amendments, which if Submitted, are reserved for the people's decision.

The substantive question presented in the case at bar of whether the President may legally exercise
the constituent power vested in the interim National Assembly (which has not been granted to his
office) and propose constitutional amendments is preeminently a justiciable issue.

Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In
cases of conflict, the judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and among the integral
or constituent units thereof".

To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be
judicial abdication.

III. On the question of whether there is a sufficient and proper submittal of the proposed
amendments to the people: Prescinding from the writer's view of the nullity of the questioned decree
of lack of authority on the President's part to excercise the constituent power, I hold that the doctrine
of fair and proper submission first enunciated by a simple majority of by Justices in Gonzales and
subsequently officially adopted by the required constitutional two-thirds majority of the Court in is
controlling in the case at bar.

1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by
this Court in Tolentino where "the proposed amendment in question is expressly saddled with
reservations which naturally impair, in great measures, its very essence as a proposed constitutional
amendment" and where "the way the proposal is worded, read together with the reservations tacked
to it by the Convention thru Section 3 of the questioned resolution, it is too much of a speculation to
assume what exactly the amendment would really amount lo in the end. All in all, as already pointed
out in our discussion of movants' first ground, if this kind of amendment is allowed, the Philippines
will appear before the world to be in the absurd position of being the only country with a constitution
containing a provision so ephemeral no one knows until when it will bet actually in force", there can
be no proper submission.

In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this Court
which ruled that "in order that a plebiscite for the ratification of an amendment to the Constitution
may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole," and that there was no proper
Submission wherein the people are in the dark as to frame of reference they can base their
judgment on

2. The now Chief Justice and Mr. Justice Makasiar with two other members 46 graphically pointed
out in their joint separate opinion that the solitary question "would seem to be uncomplicated and
innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be
so simple after all".47

They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez' separate
opinion in Gonzales "on the minimum requirements that must be met in order that there can be a
proper submission to the people of a proposed constitutional amendment" which reads thus:

... we take the view that the words 'submitted to the people for their ratification', if
construed in the light of the nature of the Constitution a fundamental charter that is
legislation direct from the people, an expression of their sovereign will - is that it can
only be amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid before the
 people for their blessing or spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample opportunity to mull over
the original provisions, compare them with the proposed amendments, and try to
reach a conclusion as the dictates of their conscience suggest, free from the incubus
of extraneous or possibly insidious influences. We believe the word submitted' can
only mean that the government, within its maximum capabilities, should strain every
effort to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by
the framers of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the people,
educate them with respect to their act of ratification or rejection. For, as we have
earlier stated, one thing is submission and another is ratification. There must be fair
submission, intelligent. consent or rejection. If with all these safeguards the people
still approve the amendment no matter how prejudicial it is to them, then so be it. For
the people decree their own fate.48

Justice Sanchez therein ended the passage with an apt citation that " ... " The great men who
builded the structure of our state in this respect had the mental vision of a good Constitution voiced
by Judge Cooley, who has said 'A good Constitution should be beyond the reach of temporary
excitement and. popular caprice or passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the government is to be safe, can be allowed
efficiency. xxx xxx xxx Changes in government are to be feared unless the benefit is certain. As
Montaign says: All great mutations shake and disorder state. Good does not necessarily succeed
evil ;another evil may succeed and a worse'." 49

Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that there is no
proper submission "if the people are not sufficiently affirmed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine manner. ... .." 50

3. From the complex and complicated proposed amendments set forth in the challenged decree and
the plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest
that there is no proper submission of the proposed amendments. Nine (9) proposed constitutional
amendments were officially proposed and made known as per Presidential Decree No. 1033 dated,
September 22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday,
October 16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote notwithstanding
their lack of qualification under Article VI of the Constitution. Former Senator Arturo Tolentino, an
acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3
to have observed that "there is no urgency in approving the proposed amendments to the
Constitution and suggested that the question regarding charter changes be modified instead of
asking the people to vote on hurriedly prepared amendments". He further pointed out that "apart
from lacking the parliamentary style in the body of the Constitution, they do not indicate what
particular provisions are being repealed or amended".52

As of this writing, October 11, 1976, the paper today reported his seven-page analysis questioning
among others the proposed granting of dual legislative powers to both the President and the
Batasang Pambansa and remarking that "This dual legislative authority can give rise to confusion
and serious constitutional questions".53

Aside from the inadequacy of the limited time given for the people's consideration of the proposed
amendments, there can be no proper submission because the proposed amendments are not in
proper form and violate the cardinal rule of amendments of written constitutions that the specific
provisions of the Constitution being repealed or amended as well as how the specific provisions as
amended would read, should be clearly stated in careful and measured terms. There can be no
proper submission because the vagueness and ambiguity of the proposals do not sufficiently inform
the people of the amendments for, conscientious deliberation and intelligent consent or rejection.

4. While the press and the Solicitor General at the hearing have stated that the principal thrust of the
proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a
serious study thereof in detail would lead to the conclusion that the whole context of the 1973
Constitution proper would be affected and grave amendments and modifications thereof -would
apparently be made, among others, as follows:

Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is
reduced to 18 years;

Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim
Batasang Pambansa;

Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa within
30 days from the election and selection of the members (for which there is no fixed date) the
incumbent President apparently becomes a regular President and Prime Minister (not ad interim);

Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the
Constitution such as the prohibition against the holding of more than one office in the government
including government-owned or -controlled corporations would appear to be eliminated, if not
prescribed by the President;

Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law
is lifted;

Under Amendment No. 6, there is a duality of legislative authority given the President and the interim
Batasang Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino,
with the President continuing to exercise legislative powers in case of "grave emergency or a threat
or imminence thereof" (without definition of terms) or when said Assemblies "fail or are unable to act
adequately on any matter for any reason that in his judgment requires immediate action", thus
radically affecting provisions of the Constitution governing the said departments;

Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized,
although their functions, power and composition may be altered by law. Referendums (which are not
authorized in the present 1973 Constitution) would also be constitutionalized, giving rise to the
possibility fraught with grave consequences, as acknowledged at the hearing, that amendments to
the Constitution may thereafter be effected by referendum, rather than by the rigid and strict
amending process provided presently in Article XVI of the Constitution;

Under Amendment No. 8, there is a general statement in general that the unspecified provisions of
the Constitution "not inconsistent with any of these amendments" shall continue in full force and
effect; and Under Amendment No. 9. the incumbent President is authorized to proclaim the
ratification of the amendments by the majority of votes cast. It has likewise been stressed by the
officials concerned that the proposed amendments come in a package and may not be voted upon
separately but on an "all or nothing" basis.

5. Whether the people can normally express their will in a genuine manner and with due
circumspection on the proposed amendments amidst the constraints of martial law is yet another
question. That a period of free debate and discussion has to be declared of itself shows the
limitations on free debate and discussion. The facilities for free debate and discussion over the mass
media, print and otherwise are wanting. The President himself is reported to have observed the
timidity of the media under martial law and to have directed the press to air the views of the
opposition.54

Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of
September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation, as
our youth analyzes the issues "which will affect generations yet to come" and urge the people to mull
over the pros and cons very carefully", as follows:

THE REFERENDUM ISSUES

On October 16, the people may be asked to decide on two important national issues
- the creation of a new legislative body and the lifting of martial law.

On the first issue, it is almost sure that the interim National Assembly will not be
convened, primarily because of its membership. Majority of the members of the
defunct Congress, who are mandated by the Constitution to become members of the
 interim National Assembly, have gained so widespread a notoriety that the mere
mention of Congress conjures the image of a den of thieves who are out to fool the
people most of the time. Among the three branches of government, it was the most
discredited. In fact, upon the declaration of martial law, some people were heard to
mutter that a 'regime that has finally put an end to such congressional shenanigans
could not be all that bad'.

A substitute legislative body is contemplated to help the President in promulgating

laws, and perhaps minimize the issuance of ill-drafted decrees which necessitate
constant amendments. But care should be taken that this new legislative body would
not become a mere rubber stamp akin to those of other totalitarian countries. It
should be given real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has expressed the
desire that among the powers he would like to have with regard to the proposed
legislative body is that of abolishing it in case 'there is a need to do so'. As to what
would occasion such a need, only the President himself can determine. This would
afford the Chief Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.

On the matter of lifting martial law the people have expressed ambivalent attitudes.
Some of them, remembering the turmoil that prevailed before the declaration of
martial law, have expressed the fear that its lifting might precipitate the revival of the
abuses of the past, and provide an occasion for evil elements to resurface with their
usual tricks. Others say that it is about time martial law was lifted since the peace
and order situation has already stabilized and the economy seems to have been
parked up.

The regime of martial law has been with us for four years now. No doubt, martial law
has initially secured some reforms for the country The people were quite willing to
participate in the new experiment, thrilled by the novelty of it all. After the euphoria,
however, the people seem to have gone back to the old ways, with the exception that
some of our freedoms were taken away, and an authoritarian regime established.

We must bear in mind that martial law was envisioned only to cope with an existing
national crisis, It was not meant to be availed of for a long period of time, otherwise it
would undermine our adherence to a democratic form of government. In the words of
the Constitution. martial law shall only be declared in times of 'rebellion, insurrection,.
invasion, or imminent danger thereof, when the public safety requires it'. Since we no
longer suffer from internal disturbances of a gargantuan scale, it is about time we
seriously rethink the 'necessity' of prolonging the martial law regime. If we justify the
continuance of martial by economic or other reasons other than the foregoing
constitutional grounds, then our faith in the Constitution might be questioned. Even
without martial law,. the incumbent Chief Executive still holds vast powers under the
constitution. After all, the gains of the New Society can be secured without sacrificing
the freedom of our people. If the converse is true, then we might have to conclude
that the Filipinos deserve a dictatorial form of government. The referendum results
will show whether the people themselves have adopted this sad conclusion.

The response of the people to the foregoing issues will affect generations yet to
come, so they should mull over the pros and cons very carefully."

6. This opinion by written in the same spirit as the President's exhortations on the first anniversary of
proclamation of the 1973 Constitution that we "let the Constitution remain firm and stable" so that it
may "guide the people", and that we "remain steadfast on the rule of law and the Constitution" as he
recalled his rejection of the "exercise (of) power that can be Identified merely with a revolutionary
government" that makes its own law, thus:

. . . Whoever he may be and whatever position he may happen to have, whether in

government or outside government, it is absolutely necessary now that we look
solemnly and perceptively into the Constitution and try to discover for ourselves what
our role is in the successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let all of us then
pass away as a pace in the development of our country. but let the Constitution
remain firm and stable and let institutions grow in strength from day to day, from
 achievement to achievement, and so long as that Constitution stands, whoever may
the man in power be, whatever may his purpose be, that Constitution will guide the
people and no man, however, powerful he may be, will dare to destroy and wreck the
foundation of such a Constitution.

These are the reasons why I personally, having proclaimed martial law, having been
often induced to exercise power that can be Identified merely with a revolutionary
government, have remained steadfast or the rule of law and the Constitution. 54*

IV. A final word on the Court's resolution of October 5, 1976 which in reply to the Comelec query
allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as
resource speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to take
sides in discussions and debates on the referendum-plebiscite questions under Section 7 of the
same Decree."55

The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented from the
majority resolution, with all due respect, on the ground that the non-participation of judges in such
public discussions and debates on the referendum-plebiscite questions would preserve the
traditional non-involvement of the judiciary in public discussions of controversial issues. This is
essential for the maintenance and enhancement of the people's faith and confidence in the judiciary.
The questions of the validity of the scheduled referendum- plebiscite and of whether there is proper
submission of the proposed amendments were precisely subjudice by virtue of the cases at bar.

The lifting of the traditional inhibition of judges from public discussion and debate might blemish the
image and independence of the judiciary. Aside from the fact that the fixing of a time limit for the
acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their tenure in
office still spends litigants and their relatives and friends as well as a good sector of the public would
be hesitant to air views contrary to that of the.

Judge. Justices Makasiar and Munoz Palma who share these views have agreed that we make them
of record here, since we understand that the permission given in the resolution is nevertheless
addressed to the personal decision and conscience of each judge, and these views may he of some
guidance to them.

BARREDO, J.,: concurring:

While I am in full agreement with the majority of my brethren that the herein petitions should be
dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately the
considerations that have impelled me to do so.

Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts as to
whether or not I should have taken part in the consideration and resolution of these cases. Indeed, it
would not be befitting my position in this Highest Tribunal of the land for me to leave unmentioned
the circumstances which have given cause, I presume, for others to feel apprehensive that my
participation in these proceedings might detract from that degree of faith in the impartiality that the
Court's judgment herein should ordinarily command. In a way, it can be said, of course, that I am the
one most responsible for such a rather problematical situation, and it is precisely for this reason that
I have decided to begin this opinion with a discussion of why I have not inhibited myself, trusting
most confidently that what I have to say will be taken in the same spirit of good faith, sincerity and
purity of purpose in which I am resolved to offer the same.

Plain honesty dictates that I should make of record here the pertinent contents of the official report of
the Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself
about the proceedings held on August 14, 1976. It is stated in that public document that:

THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body

came out when the President express his desire to share his powers with other
people.

Aware of this, a five-man Committee members of the Philippine Constitution Association

(PHILCONSA) headed by Supreme Court Justice Antonio Barredo proposed on July 28, the
establishment of 'Sangguniang Pambansa' or 'Batasang Pambansa' which would help the President
in the performance of his legislative functions. The proposed new body will take the place of the
interim National Assembly which is considered not practical to convene at this time considering the
constitution of its membership.

Upon learning the proposal of Justice Barredo, the country's 42,000 barangay assemblies on August
1 suggested that the people be consulted on a proposal to create a new legislative body to replace
the interim assembly provided for by the Constitution. The suggestion of the barangay units was
made through their national association, Pambansang Katipunan ng mga Barangay headed by Mrs.
Nora Z. Patines. She said that the people have shown in at least six instances including in the two
past referenda that they are against the convening of the interim National Assembly. She also said
that since the people had ruled out the calling of such assembly and that they have once proposed
that the President create instead the Sangguniang Pambansa or a legislative advisory body, then
the proposal to create a new legislative must necessarily be referred to the people.

The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in
the Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are
afoot to convene a new legislative body.

On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to
the stand of the PKB with regards to the convening of a new legislative body. The stand of the PKB
is to create a legislative advisory council in place of the old assembly. Two days after, August 8, the
Kabataang Barangay held a symposium and made a stand which is the creation of a body with full
legislative powers.

A nationwide clamor for the holding of meeting in their respective localities to discuss more
intellegently the proposal to create a new legislative body was made by various urban and rural
Sangguniang Bayans.

Numerous requests made by some members coming from 75 provincial and 61 city SB assemblies,
were forwarded to the Department of Local Government and Community Development (DLGCD).

On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the 91
member National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on
August 14 which was held at Session Hall, Quezon City. Invited also to participate were 13 Regional
Federation Presidents each coming from the PKB and the PKKB

Actually, the extent of my active participation in the events and deliberations that have culminated in
the holding of the proposed referendum- plebiscite on October 16, 1976, which petitioners are here
seeking to enjoin, has been more substantial and meaningful than the above report imparts. Most
importantly, aside from being probably the first person to publicly articulate the need for the creation
of an interim legislative body to take the place of. the interim National Assembly provided for in the
Transitory Provisions of the Constitution, as suggested in the above report, I might say that I was the
one most vehement and persistent in publicly advocating and urging the authorities concerned to
directly submit to the people in a plebiscite whatever amendments of the Constitution might be
considered necessary for the establishment of such substitute interim legislature. In the
aforementioned session of the Executive Committee of the Katipunan, I discourse on the
indispensability of a new interim legislative body as the initial step towards the early lifting of martial
law and on the fundamental considerations why in our present situation a constitutional convention
would be superfluous in amending the Constitution.

Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of the
Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain terms the plan to call a
constitutional convention. I reiterated the same views on September 7, 1976 at the initial conference
called by the Comelec in the course of the information and educational campaign it was enjoined to
conduct on the subject. And looking back at the subsequent developments up to September 22,
1976, when the Batasang Bayan approved and the President signed the now impugned Presidential
Decree No. 1033, it is but human for me to want to believe that to a certain extent my strong
criticisms and resolute stand against any other alternative procedure of amending the Constitution
for the purpose intended had borne fruit.

I must hasten to add at this point, however, that in a larger sense, the initiative for all I have done,
was not altogether mine alone. The truth of the matter is that throughout the four years of this martial
law government, it has always been my faith, as a result of casual and occasional exchanges of
thought with President Marcos, that when the appropriate time does come, the President would
somehow make it known that in his judgment, the situation has already so improved as to permit the
implementation, if gradual, of the constitutionally envisioned evolution of our government from its
present state to a parliamentary one. Naturally, this would inevitably involve the establishment of a
legislative body to replace the abortive interim National Assembly. I have kept tract of all the public
and private pronouncements of the President, and it was the result of my reading thereof that
furnished the immediate basis for my virtually precipitating, in one way or another, the materialization
of the forthcoming referendum-plebiscite. In other words, in the final analysis, it was the President's
own attitude on the matter that made it opportune for me to articulate my own feelings and Ideas as
to how the nation can move meaningfully towards normalization and to publicly raise the issues that
have been ventilated by the parties in the instant cases.

I would not be human, if I did not consider myself privileged in having been afforded by Divine
Providence the opportunity to contribute a modest share in the formulation of the steps that should
lead ultimately to the lifting of martial law in our country. Indeed, I am certain every true Filipino is
anxiously looking forward to that eventuality. And if for having voiced the sentiments of our people,
where others would have preferred to be comfortably silent, and if for having made public what every
Filipino must have been feeling in his heart all these years, I should be singled out as entertaining
such preconceived opinions regarding the issues before the Court in the cases at bar as to preclude
me from taking part in their disposition, I can only say that I do not believe there is any other Filipino
in and out of the Court today who is not equally situated as I am .

The matters that concern the Court in the instant petitions do not involve merely the individual
interests of any single person or group of persons. Besides, the stakes in these cases affect
everyone commonly, not individually. The current of history that has passed through the whole
country in the wake of martial law has swept all of us, sparing none, and the problem of national
survival and of restoring democratic institutions and Ideals is seeking solution in the minds of all of
us. That I have preferred to discuss publicly my own thoughts on the matter cannot mean that my
colleagues in the Court have been indifferent and apathetic about it, for they too are Filipinos.
Articulated or not, all of us must have our own preconceived Ideas and notions in respect to the
situation that confronts the country. To be sure, our votes and opinions in the- major political cases
in the recent past should more or less indicate our respective basic positions relevant to the issues
now before Us. Certainly, contending counsels cannot be entirely in the dark in this regard. I feel that
it must have been precisely because of such awareness that despite my known public participation
in the discussion of the questions herein involved, none of the parties have sought my inhibition or
disqualification.

Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions
and personal inclinations to affect the objectivity needed in the resolution of any judicial question
before the Court. I feel I have always been able to appreciate, fully consider and duly weigh
arguments and points raised by all counsels, even when they conflict with my previous views. I am
never beyond being convinced by good and substantial ratiocination. Nothing has delighted me more
than to discover that somebody else has thought of more weighty arguments refuting my own,
regardless of what or whose interests are at stake. I would not have accepted my position in the
Court had I felt I would not be able to be above my personal prejudices. To my mind, it is not that a
judge has preconceptions that counts, it is his capacity and readiness to absorb contrary views that
are indispensable for justice to prevail. That suspicions of prejudgment may likely arise is
unavoidable; but I have always maintained that whatever improper factors might influence a judge
will unavoidably always appear on the face of the decision. In any event, is there better guarantee of
justice when the preconceptions of a judge are concealed?

Withal, in point of law, I belong to the school of thought that regards members of the Supreme Court
as not covered by the general rules relative to disqualification and inhibition of judges in cases
before them. If I have in practice actually refrained from participating in some cases, it has not been
because of any legal ground founded on said rules, but for purely personal reasons, specially
because, anyway, my vote would not have altered the results therein.

It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution
does not envisage compulsory disqualification or inhibition in any case by any member of the
Supreme Court. The Charter establishes a Supreme Court "composed of a Chief Justice and
fourteen Associate Justices", with the particular qualifications therein set forth and to be appointed in
the manner therein provided. Nowhere in the Constitution is there any indication that the legislature
may designate by law instances wherein any of the justices should not or may not take part in the
resolution of any case, much less who should take his place. Members of the Supreme Court are
definite constitutional officers; it is not within the power of the lawmaking body to replace them even
temporarily for any reason. To put it the other way, nobody who has not been duly appointed as a
member of the Supreme Court can sit in it at any time or for any reason. The Judicial power is
vested in the Supreme Court composed as the Constitution ordains - that power cannot be exercised
by a Supreme Court constituted otherwise. And so, when as in the instant where, if any of the
member of Court is to abstain from taking part, there would be no quorum - and no court to render
the decision - it is the includible duty of all the incumbent justices to participate in the proceedings
and to cast their votes, considering that for the reasons stated above, the provisions of Section 9 of
the Judiciary Act do not appear to conform with the concept of the office of Justice of the Supreme
Court contemplated in the Constitution.

The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and
bulwark of the rights and liberties of all the people demands that only one of dependable and
trustworthy probity should occupy the same. Absolute integrity, mental and otherwise, must be by
everyone who is appointed thereto. The moral character of every member of the Court must be
assumed to be such that in no case whatsoever. regardless of the issues and the parties involved,
may it be feared that anyone's life, liberty or property, much less the national interests, would ever
be in jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In sum,
every Justice of the Supreme Court is expected to be capable of rising above himself in every case
and of having full control of his emotions and prejudices, such that with the legal training and
experience he must of necessity be adequately equipped with, it would be indubitable that his
judgment cannot be but objectively impartial, Indeed, even the appointing power, to whom the
Justices owe their positions, should never hope to be unduly favored by any action of the Supreme
Court. All appointments to the Court are based on these considerations, hence the ordinary rules on
inhibition and disqualification do not have to be applied to its members.

With the preliminary matter of my individual circumstances out of the way, I shall now address
myself to the grave issues submitted for Our resolution.

-I-

In regard to the first issue as to whether the questions posed in the petitions herein are political or
justiciable, suffice it for me to reiterate the fundamental position I took in the Martial Law cases,1 thus

As We enter the extremely delicate task of resolving the grave issues thus thrust
upon Us. We are immediately encountered by absolute verities to guide Us all the
way. The first and most important of them is that the Constitution (Unless expressly
stated otherwise, all references to the Constitution in this discussion are to both the
1935 and 1973 charters, since, after all, the pertinent provisions are practically
Identical in both is the supreme law of the land. This means among other things that
all the powers of the government and of all its officials from the President down to the
lowest emanate from it. None of them may exercise any power unless it can be
traced thereto either textually or by natural and logical implication. "The second is
that it is settled that the Judiciary provisions of the Constitution point to the Supreme
Court as the ultimate arbiter of all conflicts as to what the Constitution or any part
thereof means. While the other Departments may adopt their own construction
thereof, when such construction is challenged by the proper party in an appropriate
case wherein a decision would be impossible without determining the correct
construction, the Supreme Court's word on the matter controls.

xxx xxx xxx

xxx xxx xxx

The fifth is that in the same manner that the Executive power conferred upon the
Executive by the Constitution is complete, total and unlimited, so also, the judicial
power vested in the Supreme Court and the inferior courts, is the very whole of that
power, without any limitation or qualification.

xxx xxx xxx

xxx xxx xxx

From these incontrovertible postulates, it results, first of all, that the main question
before Us is not in reality one of jurisdiction, for there can be no conceivable
 controversy, especially one involving a conflict as to the correct construction of the
Constitution, that is not contemplated to be within the judicial authority of the courts
to hear and decide. The judicial power of the courts being unlimited and unqualified,
it extends over all situations that call for the as certainment and protection of the
rights of any party allegedly violated, even when the alleged violator is the highest
official of the land or the government itself. It is, therefore, evidence that the Court's
jurisdiction to take cognizance of and to decide the instant petitions on their merits is
beyond challenge.

In this connection, however, it must be borne in mind that in the form of government
envisaged by the framers of the Constitution and adopted by our people, the Court's
indisputable and plenary authority to decide does not necessarily impose upon it the
duty to interpose its fiat as the only means of settling the conflicting claims of the
parties before it. It is ingrained in the distribution of powers in the fundamental law
that hand in hand with the vesting of the judicial power upon the Court, the
Constitution has coevally conferred upon it the discretion to determine, in
consideration of the constitutional prerogatives granted to the other Departments,
when to refrain from imposing judicial solutions and instead defer to the judgment of
the latter. It is in the very nature of republican governments that certain matters are
left in the residual power of the people themselves to resolve, either directly at the
polls or thru their elected representatives in the political Departments of the
government. And these reserved matters are easily distinguishable by their very
nature, when one studiously considers the basic functions and responsibilities
entrusted by the charter to each of the great Departments of the government. To cite
an obvious example, the protection, defense and preservation of the state against
internal or external aggression threatening its very existence is far from being within
the ambit of judicial responsibility. The distinct role then of the Supreme Court of
being the final arbiter in the determination of constitutional controversies does not
have to be asserted in such contemplated situations, thereby to give way to the
ultimate prerogative of the people articulated thru suffrage or thru the acts of their
political representatives they have elected for the purpose.

Indeed, these fundamental considerations are the ones that lie at the base of what is known in
American constitutional law as the political question doctrine, which in that jurisdiction is
unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently more
attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power, upon
the theory that unless the courts intervene injustice might prevail. It has been invoked and applied by
this Court in varied forms and mode of projection in several momentous instances in the past,
(Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45
Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez
Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos
vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.)
and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases
at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But as the
nomenclatures themselves imply, activism and self- restraint are both subjective attitudes, not
inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by
what in the Court's considered opinion is what the Constitution envisions should be by in order to
accomplish the objectives of government and of nationhood. And perhaps it may be added here to
avoid confusion of concepts, that We are not losing sight of the traditional approach based on the
doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization,
the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and independent
Department being the general rule, particularly when the issue is not encroachment of delimited
areas of functions but alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-
383.)

Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to
pass on the merits of the various claims of petitioners. At the same time, however, I maintain that the
basic nature of the issues herein raised requires that the Court should exercise its constitutionally
endowed prerogative to refrain from exerting its judicial authority in the premises.

Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence
of any clear and definite express provision in the Charter applicable to the factual milieu herein
involved. The primary issue is, to whom, under the circumstances, does the authority to propose
amendments to the Constitution property belong? To say, in the light of Section 15 of Article XVII of
the Charter, that that faculty lies in the interim National Assembly is to beg the main question.
Indeed, there could be no occasion for doubt or debate, if it could ' only be assumed that the interim
National Assembly envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But
precisely, the fundamental issue We are called upon to decide is whether or not it is still
constitutionally possible to convene that body. And relative to that question, the inquiry centers on
whether or not the political developments since the ratification of the Constitution indicate that the
people have in effect enjoined the convening of the interim National Assembly altogether. On this
score, it is my assessment that the results of the referenda of January 10-15, 1973, July 27-28, 1973
and February 27, 1975 clearly show that the great majority of our people, for reasons plainly obvious
to anyone who would consider the composition of that Assembly, what with its more than 400
members automatically voted into it by the Constitutional Convention together with its own members,
are against its being convoked at all.

Whether or not such a manifest determination of the sentiments of the people should be given effect
without a formal amendment of the Constitution is something that constitutional scholars may
endlessly debate on. What cannot be disputed, however, is that the government and the nation have
acquiesced to, it and have actually operated on the basis thereof. Proclamation 1103 which, on the
predicate that the overwhelming majority of the people desire that the interim Assembly be not
convened, has ordained the suspension of its convocation, has not been assailed either judicially or
otherwise since the date of its promulgation on January 17, 1973.

In these premises, it is consequently the task of the Court to determine what, under these
circumstances, is the constitutional relevance of the interim National Assembly to any proposal to
amend the Constitution at this time. It is my considered opinion that in resolving that question, the
Court must have to grapple with the problem of what to do with the will of the people, which although
manifested in a manner not explicitly provided for in the Constitution, was nevertheless official, and
reliable, and what is more important clear and unmistakable, despite the known existence of well-
meaning, if insufficiently substantial dissent. Such being the situation, I hold that it is not proper for
the Court to interpose its judicial authority against the evident decision of the people and should
leave it to the political department of the government to devise the ways and means of resolving the
resulting problem of how to amend the Constitution, so long as in choosing the same, the ultimate
constituent power is left to be exercised by the people themselves in a well- ordered plebiscite as
required by the fundamental law.

-2-

Assuming We have to inquire into the merits of the issue relative to the constitutional authority
behind the projected amendment of the Charter in the manner provided in Presidential Decree 1033,
I hold that in the peculiar situation in which the government is today, it is not incompatible with the
Constitution for the President to propose the subject amendments for ratification by the people in a
formal plebiscite under the supervision of the Commission on Elections. On the contrary, in the
absence of any express prohibition in the letter of the Charter, the Presidential Decree in question is
entirely consistent with the spirit and the principles underlying the Constitution. The correctness of
this conclusion should become even more patent, when one considers the political developments
that the people have brought about since the ratification of the Constitution on January 17,1973.

I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion
of the celebration of Law Day on September 18, 1975 before the members of the Philippine
Constitution Association and their guests:

To fully comprehend the constitutional situation in the Philippines today, one has to
bear in mind that, as I have mentioned earlier, the martial law proclaimed under the
1935 Constitution overtook the drafting of the new charter by the Constitutional
Convention of 1971. It was inevitable, therefore, that the delegates had to take into
account not only the developments under it but, most of all, its declared objectives
and what the President, as its administrator, was doing to achieve them. In this
connection, it is worthy of mention that an attempt to adjourn the convention was
roundly voted down to signify the determination of the delegates to finish earliest
their work, thereby to accomplish the mission entrusted to them by the people to
introduce meaningful reforms in our government and society. Indeed, the constituent
labors gained rapid tempo, but in the process, the delegates were to realize that the
reforms they were formulating could be best implemented if the martial law powers of
the President were to be allowed to subsist even after the ratification of the
Constitution they were approving. This denouement was unusual. Ordinarily, a
 constitution born out of a crisis is supposed to provide all the needed cures and can,
therefore, be immediately in full force and effect after ratification. Not so, with our
1973 Constitution, Yes, according to the Supreme Court, 'there is no more judicial
obstacle to the new Constitution being considered in force and effect', but in truth, it
is not yet so in full. Let me explain.

To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body
or main part thereof and its transitory provisions. It is imperative to do so because the transitory
provisions of our Constitution are extraordinary in the sense that obviously they have been designed
to provide not only for the transition of our government from the presidential form under the past
charter to a parliamentary one as envisaged in the new fundamental law, but also to institutionalize,
according to the President, the reforms introduced thru the exercise of his martial law powers. Stated
differently, the transitory provisions, as it has turned out, has in effect established a transition
government, not, I am sure, perceived by many. It is a government that is neither presidential nor
parliamentary. It is headed, of course, by President Marcos who not on retains all his powers under
the 1935 Constitution but enjoys as well those of the President and the Prime Minister under the new
Constitution. Most importantly, he can and does legislate alone. But to be more accurate, I should
say that he legislates alone in spite of the existence of the interim National Assembly unequivocally
ordained by the Constitution, for the simple reason that he has suspended the convening of said
assembly by issuing Proclamation No. 1103 purportedly 'in deference to the sovereign will of the
Filipino people' expressed in the January 10-15, 1973 referendum.

Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted
for approval or disapproval of the people, and after the votes were counted and the affirmative
majority known, we were told that the resulting ratification was subject to the condition that the
interim National Assembly evidently established in the Constitution as the distinctive and
indispensable element of a parliamentary form of government should nevertheless be not convened
and that no elections should be held for about seven years, with the consequence that we have now
a parliamentary government without a parliament and a republic without any regular election of its
officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but
of the direct mandate of the sovereign people expressed in a referendum. In other words, in an
unprecedented extra-constitutional way, we have established, wittingly or unwittingly, a direct
democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later on
have been transformed into barangays, a system of government proclaimed by the President as 'a
real achievement in participatory democracy.' What I am trying to say, my friends, is that as I
perceive it, what is now known as constitutional authoritarianism means, in the final analysis, that the
fundamental source of authority of our existing government may not be necessarily found within the
four corners of the Constitution but rather in the results of periodic referendums conducted by the
Commission on Elections in a manner well known to all of us This, as I see it, is perhaps what the
President means by saying that under the new Constitution he has extra-ordinary powers
independently of martial law - powers sanctioned directly by the people which may not even be read
in the language of the Constitution. in brief, when we talk of the rule of law nowadays, our frame of
reference should not necessarily be the Constitution but the outcome of referendums called from
time to time by the President. The sooner we imbibe this vital concept the more intelligent will our
perspective be in giving our support and loyalty to the existing government. What is more, the
clearer will it be that except for the fact that all the powers of government are being exercised by the
President, we - do not in reality have a dictatorship but an experimental type of direct democracy."

In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It
is important to note, relative to the main issue now before Us, that it was originally planned to ask
the people in that referendum whether or not they would like the interim National Assembly to
convene, but the Comelec to whom the task of preparing the questions was assigned was prevailed
upon not to include any -such question anymore, precisely because it was the prevalent view even
among the delegates to the Convention as well as the members of the old Congress concerned that
that matter had already been finally resolved in the previous referenda of January and July 1973 in
the sense that. the Assembly should not be convened comparable to res adjudicata.

It is my position that as a result of the political developments since January 17, 1973 the transitory
provisions envisioning the convening of the interim National Assembly have been rendered legally
inoperative. There is no doubt in my mind that for the President to convoke the interim National
Assembly as such would be to disregard the will of the people - something no head of a democratic
republican state like ours should do. And I find it simply logical that the reasons that motivated the
people to enjoin the convening of the Assembly - the unusually large and unmanageable number of
its members and the controversial morality of its automatic composition consisting of all the
incumbent elective national executive and legislative officials under the Old Constitution who would
agree to join it and the delegates themselves to the Convention who had voted in favor of the
Transitory Provisions - apply not only to the Assembly as an ordinary legislature but perhaps more to
its being a constituent body. And to be more realistic, it is but natural to conclude that since the
people are against politicians in the old order having anything to do with the formulation of national
policies, there must be more reasons for them to frown on said politicians taking part in amendment
of the fundamental law, specially because the particular amendment herein involved calls for the
abolition of the interim National Assembly to which they belong and its substitution by the Batasang
Pambansa.

It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I
disagree. It is inconsistent with the plenary power of the people to give or withhold their assent to a
proposed Constitution to maintain that they can do so only wholly. I cannot imagine any sound
principle that can be invoked to support the theory that the proposing authority can limit the power of
ratification of the people. As long as there are reliable means by which only partial approval can be
manifested, no cogent reason exists why the sovereign people may not do so. True it is that no
proposed Constitution can be perfect and it may therefore be taken with the good and the bad in it,
but when there are feasible ways by which it can be determined which portions of it, the people
disapprove. it would be stretching technicality beyond its purported office to render the final authority
- the people impotent to act according to what they deem best suitable to their interests.

In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility
of qualified ratification. Proclamation 1103 categorically declares that:

WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-
one (14,976.561) members of all the Barangays voted for the adoption of the
proposed Constitution, as against seven hundred forty-three thousand eight hundred
sixty-nine (743,869) who voted for its rejection; but a majority of those who approved
the new Constitution conditioned their votes on the demand that the interim National
Assembly provided in its Transitory Provisions should not be convened.

and in consequence, the President has acted accordingly by not convening the Assembly. The
above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on
the Court, the same being a political act of a coordinate department of the government not properly
assailed as arbitrary or whimsical. At this point, it must be emphasized in relation to the contention
that a referendum is only consultative, that Proclamation 1103, taken together with Proclamation
1102 which proclaimed the ratification of the Constitution, must be accorded the same legal
significance as the latter proclamation, as indeed it is part and parcel if the Act of ratification of the
Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact that
the sovereign people have voted against the convening of the interim National Assembly, and faced
with the problem of amending the Constitution in order precisely to implement the people's rejection
of that Assembly, the problem of constitutional dimension that confronts Us, is how can any such
amendment be proposed for ratification by the people?

To start with, it may not be supposed that just because the office or body designed by the
constitutional convention to perform the constituent function of formulating proposed amendments
has been rendered inoperative by the people themselves, the people have thereby foreclosed the
possibility of amending the Constitution no matter how desirable or necessary this might be. In this
connection, I submit that by the very nature of the office of the Presidency in the prevailing scheme
of government we have - it being the only political department of the government in existence - it is
consistent with basic principles of constitutionalism to acknowledge the President's authority to
perform the constituent function, there being no other entity or body lodged with the prerogative to
exercise such function.

There is another consideration that leads to the same conclusion. It is conceded by petitioners that
with the non-convening of the interim Assembly, the legislative authority has perforce fallen into the
hands of the President, if only to avoid a complete paralysis of law-making and resulting anarchy
and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII invest the
President with legislative power for the duration of the transition period. From these premises, it is
safe to conclude that in effect the President has been substituted by the people themselves in place
of the interim Assembly. Such being the case, the President should be deemed as having been
granted also the cognate prerogative of proposing amendments to the Constitution. In other words,
the force of necessity and the cognate nature of the act justify that the department exercising the
legislative faculty be the one to likewise perform the constituent function that was attached to the
body rendered impotent by the people's mandate. Incidentally, I reject most vehemently the
proposition that the President may propose amendments to the Constitution in the exercise of his
martial law powers. Under any standards, such a suggestion cannot be reconciled with the Ideal that
a Constitution is the free act of the people.

It was suggested during the oral, argument that instead of extending his legislative powers by
proposing the amendment to create a new legislative body, the President should issue a decree
providing for the necessary apportionment of the seats in the Regular National Assembly and call for
an election of the members thereof and thus effect the immediate normalization of the parliamentary
government envisaged in the Constitution. While indeed procedurally feasible, the suggestion
overlooks the imperative need recognized by the constitutional convention as may be inferred from
the obvious purpose of the transitory provisions, for a period of preparation and acquaintance by all
concerned with the unfamiliar distinctive features and practices of the parliamentary system.
Accustomed as we are to the presidential system, the Convention has seen to it that there should be
an interim parliament under the present leadership, which will take the corresponding measures to
effectuate the efficient and smooth transition from the present system to the new one. I do not
believe this pattern set by the convention should be abandoned.

The alternative of calling a constitutional convention has also been mentioned. But, in the first place,
when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National
Assembly may call a Constitutional Convention or submit such a call for approval of the people,
Section 15 of Article XVII, in reference to interim National Assembly, does not grant said body the
prerogative of calling a convention, one can readily appreciate that the spirit of the Constitution does
not countenance or favor the calling of a convention during the transition, if only because such a
procedure would be time consuming, cumbersome and expensive. And when it is further noted that
the requirement as to the number of votes needed for a proposal is only a majority, whereas it is
three-fourths in respect to regular Assembly, and, relating this point to the provision of Section 2 of
Article XVI to the effect that all ratification plebiscites must be held "not later than three months after
the approval" of the proposed amendment by the proposing authority, the adoption of the most
simple manner of amending the charter, as that provided for in the assailed Presidential Decree
1033 suggests itself as the one most in accord with the intent of the fundamental law.

There is nothing strange in adopting steps not directly based on the letter of the Constitution for the
purpose of amending or changing the same. To cite but one important precedent, as explained by
Mr. Justice Makasiar in his concurring opinion in Javellana 2, the present Constitution of the United
States was neither proposed nor ratified in the manner ordained by the original charter of that
country, the Articles of Confederation and Perpetual Union.

In brief. if the convening and operation of the interim National Assembly has been effectuated
through a referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two
subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held plebiscite
suffice for the purpose of creating a substitute for that Assembly? It should be borne in mind that
after all, as indicated in the whereas of the impugned Presidential Decree, actually, the proposed
amendments were initiated by the barangays and sanggunian members. In other words, in
submitting the amendments for ratification, the President is merely acting as the conduit thru whom a
substantial portion of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at
Kabataang Barangay, seek the approval of the people as a whole of the amendments in question. If
all these mean that the sovereign people have arrogated unto themselves the functions relative to
the amendment to the Constitution, I would regard myself as totally devoid of legal standing to
question it, having in mind that the most fundamental tenet on which our whole political structure
rests is that "sovereignty resides in the people and all government authority emanates from them."

In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe
the Constitution, if only because the specific provision it is supposed to infringe does not exist in
legal contemplation since it was coevally made inoperative when the people ratified the Constitution
on January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment
contained in said decree that is inconsistent with the fundamental principles of constitutionalism. On
the contrary, I find that the Decree, in issue conforms admirably with the underlying tenet of our
government - the sovereignty and plenary power of the people.

On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently
comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential
Decree 1033, all I can say is that while perhaps my other colleagues are right in holding that the
period given to the people is adequate, I would leave it to the President to consider whether or not it
would be wiser to extend the same. Just to avoid adverse comments later I wish the President
orders a postponement. But whether such postponement is ordered or not, date of the referendum-
plebiscite anywhere from October 16, 1976 to any other later date, would be of no vital import.

In conclusion, I vote to dismiss all the three petitions before Us.

MAKASIAR, J., concurring and dissenting:

Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people
in their sovereign capacity, the question is political as the term is defined in Tanada, et al. vs.
Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in Our
opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive
Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165); Monteclaro, etc., et
al. vs' Executive Secretary, et al. (@36236); and Ditag et al. vs. Executive Secretary, et al. (L-W283,
March 31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not important Ratification
by the people is all that is indispensable to validate an amendment. Once ratified, the method of
making the proposal and the period for submission become relevant.

The contrary view negates the very essence of a republican democracy - that the people are
sovereign - and renders meaningless the emphatic declaration in the very first provision of Article II
of the 1973 Constitution that the Philippines is a republican state, sovereignty resides in the people
and all government authority emanates from them. It is axiomatic that sovereignty is illimitable The
representatives cannot dictate to the sovereign people. They may guide them; but they cannot
supplant their judgment, Such an opposite view likewise distrusts the wisdom of the people as much
as it despises their intelligence. It evinces a presumptuous pretension to intellectual superiority.
There are thousands upon thousands among the citizenry, who are not in the public service, who are
more learned and better skilled than many of their elected representatives.

Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62 SCRA
275, 298-302) that the President as enforcer or administrator of martial rule during the period of
martial law can legislate; and that he has the discretion as to when the convene the interim National
Assembly depending on prevailing conditions of peace and order. In view of the fact that the interim
National Assembly has not been convoked in obedience to the desire of the people clearly
expressed in the 1973 referenda, the President therefore remains the lone law-making authority
while martial law subsists. Consequently, he can also exercise the power of the interim National
Assembly to propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded by
petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which
drafted the 1973 Constitution. the President, during the period of martial law, can call a constitutional
convention for the purpose, admittedly a constituent power, it stands to reason that the President
can likewise legally propose amendments to the fundamental law.

ANTONIO, J., concurring:

At the threshold, it is necessary to clarify what is a "political question". It must be noted that this
device has been utilized by the judiciary "to avoid determining questions it is ill equipped to
determine or that could be settled in any event only with the effective support of the political
branches."1 According to Weston, judges, whether "personal representatives of a truly sovereign
king, or taking their seats as the creatures of a largely popular sovereignty speaking through a
written constitution, derive their power by a delegation, which clearly or obscurely as the case may
be, deliminates and delimits their delegated jurisdiction.* * * Judicial questions * * * are those which
the sovereign has set to be decided in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so-called political departments of government or has reserved to be
settled by its own extra-government or has reserved to be settled by its own extra-governmental
action."2 Reflecting a similar concept, this Court has defined a "political question" as a "matter which
is to be exercised by the people in their primary political capacity or that has been specifically
delegated to some other department or particular officer of the government, with discretionary power
to act."3 In other words, it refers to those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government.4

In determining whether an issue falls within the political question category, the absence of
satisfactory creterion for a judicial determination or the appropriateness of attributing finality to the
action of the political departments of government is a dominant consideration. This was explained by
Justice Brennan in Baker v. Carr,5 thus :

Prominent on the surface of any case held to involve political question is found a
textually demonstrable constitutional lack of judicially discoverrable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment
from from multifarious pronouncements by various departments on one question. . . .

To decide whether a matter has in a measure been committed by the Constitution to another branch
of government or retained be the people to be decided by them in their sovereign capacity, or
whether that branch exceeds whatever authority has been committed, is indeed a delicate exercise
in constitutional interpretation.

In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the ratification by
state legislatures of a constitutional amendment is a political question. On the question of whether
the State Legislature could constitutionally relative an amendment, after the same had been
previously rejected by it, it was held that the ultimate authority over the question was in Congress in
the exercise of its control over the promulgation of the adoption of the amendment. And in
connection with the second question of whether the amendment has lost its, vitality through the
lapse of time, the Court held that the question was likewise political, involving "as it does ... an
appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be
said to be within the appropriate range of evidence receivable in a court of justice and as to which it
would be an extravagant extension of juridical authority to assert judicial notice as the basis of
deciding a controversy with respect to the validity of an amendment actually ratified. On the other
hand, these conditions are appropriate for the consideration of the political departments of the
Government. The questions they involve are essentially political and not justiciable." '

In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:

The Constitution grants Congress exclusive power to control submission off

constitutional amendments. Final determination by Congress their ratification by
three-fourths of the States has taken place 'is conclusive upon the courts.' In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, A whether submission, intervening procedure for Congressional
determination of ratification conforms to the commands of the Constitution, call for
decisions by apolitical department of questions of a t@ which this Court has
frequently designated 'political.' And decision of a 'political question' by the political
department' to which the Constitution has committed it 'conclusively binds the judges,
as well as all other officers, citizens and subjects of ... government. Proclamation
under authority of Congress that an amendment has been ratified will carry with it a
solemn assurance by the Congress that ratification has taken place as the
Constitution commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, learning to the judiciary its traditional authority
of interpretation. To the extent that the Court's opinion in the present case even by
implieding assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and by ratification of
amendments, we are unable to agree.

Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. Lopez
Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that the process of constitutional
amendment, involving proposal and ratification, is a political question. In the Mabang case, the
petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity
Amendment" to the Philippine Constitution on the ground that it had not been approved by the three-
fourths vote of all the members of each house as required be Article XV of the 1935 Constitution. It
was claimed that three (3) Senators and eight (8) members of the House of Representatives had
been suspended and that their membership was not considered in the determination of the three-
fourths %- ore In dismissing the petition on the ground that the question of the validity of the
proposal was political, the Court stated:
"If ratification of an amendment is a political question, a proposal which leads to ratification has to be
a political question. The question to steps complement each other in a scheme intended to achieve a
single objective. It is to be noted that amendatory process as provided in Section I of Article XV of
the Philippine Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is no
logic in attaching political character to one and withholding that character from the other. Proposal to
amend the Constitution is a highly political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the Constitution itself. ..." (At pages 4-5, Italics
supplied.)

It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a Resolution of
Congress, acting as a constituent assembly - violates the Constitution is essentially justiciable, not
political, and hence, subject to judicial review." What was involved in Gonzales, however, was not a
proposed What was involved in Gonzales, however, was not a proposed amendment to the
Constitution but an act of Congress,9 submitting proposed amendments to the Constitution. Similarly,
in Tolentino v. Commission an Elections, 10 what was involved was not the validity of the proposal to
lower the voting age but rather that of the resolution of the Constitutional Convention submitting the
proposal for ratification. The question was whether piecemeal amendments to the Constitution could
submitted to the people for approval or rejection.

II

Here, the point has been stressed that the President is acting as agent for and in behalf of the
people in proposing the amendment. there can be no question that in the referendums of January,
1973 and in the subsequent referendums the people had clearly and categorically rejected the
calling of the interim National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap
of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing
42,000 barangays, the Kabataang Barangay organizations and the various sectoral groups had
proposed the replacement of the interim National Assembly. These barangays and the Sanggunian
assemblies are effective instrumentalities through which the desires of the people are articulated and
expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19) cabinet members
and nine (9) officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayani voted in
their special session to submit directly to the people in a plebiscite on October 16, 1976 the afore-
mentioned constitutional amendments. Through the Pambansang Katipunan by Barangay and the
Pampurok ng Katipunan Sangguniang Bayan, the people have expressed their desire not only to
abolish the interim National Assembly, but to replace it with a more representative body acceptable
to them in order to effect the desirable constitutional changes necessary to hasten the political
evolution of the government towards the parliamentary system, while at the same time ensuring that
the gains of the New Society, which are vital to the welfare of the people, shall be safeguarded. The
proposed constitutional amendments, therefore, represent a consensus of the people.

It would be futile to insist that the intemi National Assembly should have been convened to propose
those amendments pursuant to Section 15 of Article XVII of the Constitution. This Court, in the case
of Aquino v. Commission or Elections,11 took judicial notice of the fact that in the referendum of
January, 1973, a majority of those who approved the new Constitution conditioned their votes on the
demand that the interim National Assembly provided in the Transitory Provisions should not be and
the President "in deference to the sovereign will of the Filipino people" declared that the convening
of said body shall be suspended.12 As this Court observed in the Aquino case:

His decision to defer the initial convocation of the byiitttit National Assembly was
supported by the sovereign people at the by referendum in January, 1973 when the
people voted to postpone the convening of the interim National Assembly until after
at least seven (7) years from the approval of the new Constitution. And the reason
why the same question was eliminated from the questions to be submitted at the
referendum on February 27, 1975, is that even some members of the Congress and
delegates of the Constitutional Convention, who are already byjso ofitto members of
the intetini National Assembly are against such inclusion; because the issue was
already bycciled in the January, 1973 referendum by the sovereign people indicating
thereby their disenchantment with any Assembly as the former Congress failed to
institutionalize the reforms they demanded and wasted public funds through endless
debates without relieving the suffering of the general mass of citizenry (p. 302.) The
action of the President in suspending the convening of the interim National Assembly
has met the overwhelming approval of the people in subsequent referenda.
Since it was the action by the people that gave binding force and effect to the new Constitution, then
it must be accepted as a necessary consequence that their objection against the immediate
convening of the interim National Assembly must be respected as a positive mandate of the
sovereign.

In the Philippines, which is a unitary state, sovereignty "resides in the people and all government
authority emanates from them."13 The term "People" as sovereign is comprehensive in its context.
The people, as sovereign creator of all political reality, is not merely the enfranchised citizens but the
political unity of the people. 14 It connotes, therefore, a people which exists not only in the urgent
present but in the continuum of history. The assumption that the opinion of The People as voters can
be treated as the expression of the interests of the People as a historic community was, to the
distinguished American journalist and public philosopher, Walter Lipunan, unwarranted.

Because of the discrepancy between The People as Voters and the People as the
corporate nation, the voters have no title to consider themselves the proprietors of
the commonwealth and to claim that their interests are Identical to the public interest.
A prevailing plurality of the voters are not The People. The claim that they are is a
bogus title invoked to justify the usurpation of the executive power by representative
assemblies and the intimidation of public men by demagogue politicians. In fact
demagoguery can be described as the sleight of hand by which a faction of The
People as voters are invested with the authority of The People. That is why so many
crimes are committed in the People's name 15

In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose
amendments or to amend the Constitution is part of the inherent power of the people as the
repository of sovereignty in a republican state. While Congress may propose amendments to the
Constitution, it acts pursuant to authority granted to it by the people through the Constitution. Both
the power to propose and the authority to approve, therefore, inhere in the people as the bearer of
the Constitution making power.

Absent an interim National Assembly upon whom the people, through the Constitution, have
delegated the authority to exercise constituent powers, it follows from necessity that either the
people should exercise that power themselves or through any other instrumentality they may
choose. For Law, like Nature, abhors a vacuum (natural vacuum abhorret).

The question then is whether the President has authority to act for the people in submitting such
proposals for ratification at the plebiscite of October 16. The political character of the question is,
therefore, particularly manifest, considering that ultimately it is the people who will decide whether
the President has such authority. It certainly involves a matter which is to be exercised by the people
in their sovereign capacity, hence, it is essentially political, not judicial.

While it is true that the constituent power is not to be confuse with legislative power in general
because the prerogative to propose amendments is not embraced within the context of ordinary
lawmaking, it must be noted that the proposals to be submitted for ratification in the forthcoming
referendum are, in the final analysis, actually not of the President but directly of the people
themselves, speaking through their authorized instrumentalities.

As the Chief Justice aptly stated in his concurring opinion in this case:

... The President merely formalized the said proposals in Presidential Decree No.
1033. It being conceded in all quarters that sovereignty resides in the people and it
having been demonstrated that their constituent power to amend the Constitution has
not been delegated by them to any instrumentality of the Government during the
present stage of the transition period of our political development, the conclusion is
ineluctable that their exertion of that residuary power cannot be vulnerable to any
constitutional challenge as beingultravires. Accordingly, without venturing to rule on
whether or not the President is vested with constituent power - as it does not appear
necessary to do so in the premises - the proposals here challenged, being acts of the
sovereign people no less, cannot be said to be afflicted with unconstitutionality. A
fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor
is even less vulnerable not only because the President, in exercising said authority,
has acted as a mere ofiffet byf of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than constituent.
 This is but a recognition that the People of the Philippines have the inherent, sole
and exclusive right of regulating their own government, and of altering or abolishing
their Constitution whenever it may be necessary to their safety or happiness. There
appears to be no justification, under the existing, circumstances, for a Court to create
by implication a limitation on - the sovereign power of the people. As has been
clearly explained in a previous case:

There is nothing in the nature of the submission which should cause the free
exercise of it to be obstructed, or that could render it dangerous to the stability of the
government; because the measure derives all its vital force from the action of the
people at the ballot box, and there can never be danger in submitting in an
established form to a free people, the proposition whether they will change their
fundamental law The means provided for the exercise of their Sovereign right of
changing their constitution should receive such a construction as not to trammel the
exercise of the right. Difficulties and embarrassments in its exercise are in derogation
of the right of free government, which is inherent in the people; and the best security
against tumult and revolution is the free and unobstructed privilege to the people of
the State to change their constitution in the mode prescribed by the instrument.

III

The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of
ensuring popular control over the constituent power. "If the people are to control the constituent
power - the power to make and change the fundamental law of the State," observed Wheeler," "the
process of Constitutional change must not be based too heavily upon existing agencies of
government." Indeed, the basic premise of republicanism is that the ordinary citizen, the common
man. can be trusted to determine his political destiny. Therefore, it is time that the people should be
accorded the fullest opportunity to decide the laws that shall provide for their governance. For in the
ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and I
by ininess of the moqqqtai will of every Filipino.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.

Aquino, J., concur.

MUNOZ PALMA, J., dissenting:

I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my
distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to
unburden myself of some thoughts which trouble my mind and leave my conscience with no rest nor
peace.

Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious
road, the burden byeing lightened only by the thought that in this grave task of administering justice,
when matters of conscience are at issue, one must be prepared to espouse and embrace a rightful
cause however unpopular it may be.

1. That sovereignty resides in the people and all government authority emanates from them is a
fundamental, basic principle of government which cannot be disputed, but when the people have
opted to govern themselves under the mantle of a written Constitution, each and every citizen, from
the highest to the lowliest, has the sacred duty to respect and obey the Character they have so
ordained.

By the Constitution which they establish, they not only tie up he hands of their official
agencies, but their own hands as well; and neither the officers of the state, nor the
whole people as an aggregate body, are at liberty to take action in opposition to this
fundamental law. (Cooley's Constitutional Limitations, 7th Ed. p. 56, Italics Our).

The afore-quoted passage from the eminent jurist and author Judge Cooley although based on
declarations of law of more than a century ago, lays down a principle which to my mind is one of the
enduring cornerstones of the Rule of Law. it is a principle with which I have been familiar as a
student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P.
Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and civilized
society.

The Filipino people,. wanting to ensure to themselves a democratic republican form of government,
have promulgated a Constitution whereby the power to govern themselves has been entrusted to
and distributed among three branches of government; they have also mandated in clear and
unmistakable terms the method by which provisions in their fundamental Charter may be amended
or revised. Having done so, the people are bound by these constitutional limitations. For while there
is no surrender or abdication of the people's ultimate authority to amend, revise, or adopt a new
Constitution, sound reason demands that they keep themselves within the procedural bounds of the
existing fundamental law. The right of the people to amend or change their Constitution if and when
the need arises is not to be denied, but we assert that absent a revolutionary state or condition in the
country the change must be accomplished through the ordinary, regular and legitimate processes
provided for in the Constitution.'

I cannot subscribe therefore to the view taken by the Solicitor General that the people, being
sovereign, have the authority to amend the Constitution even in a manner different from and contrary
to that expressly provided for in that instrument, and that the amendatory process is intended more
as a limitation of a power rather than a grant of power to a particular agency and it should not be
construed as limiting the ultimate sovereign will of the people to decide on amendments to the
Constitution .2 Such a view will seriously undermine the very existence of a constitutional
government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek
philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?

I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and
Cases" as relevant to my point:

. . . the amendatory provisions are called a 'constitution of sovereighty' because they

define the constitutional meaning of 'sovereignty of the people.' Popular sovereignty,
as embodied in the Philippine Constitution, is not extreme popular sovereignty. As
one American writer put it:

A constitution like the American one serves as a basic check upon the popular will at
any given time. It is the distinctive function of such written document to classify
certain things as legal fundamentals; these fundamentals may not be changed
except by the slow and cumbersome process of amendment. The people themselves
have decided, in constitutional convention assembled, to limit themselves ana future
generations in the exercise of the sovereign power which they would otherwise
possess. And it is precisely such limitation that enables those subject to
governmental authority to appeal from the people drunk to the people sober in time
of excitement and hysteria. The Constitution, in the neat phrase of the Iowa court, is
the protector of the people against injury by the .people. *

Truly, what need is there for providing in the Constitution a process by which the fundamental law
may be amended if, after all, the people by themselves can set the same at naught even in times of
peace when civil authority reigns supreme? To go along with the respondents' theory in this regard is
to render written Constitutions useless or mere "ropes of sand allowing for a government of men
instead of one of laws. For it cannot be discounted that a situation may arise where the people are
heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion
overpowers reason, and mass action overthrows legal processes. History has recorded such
instances, and I can think of no better example than that of Jesus Christ of Judea who was followed
and loved by the people while curing the sick, making the lame walk and the blind see, but shortly
was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify Him"
upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more
from Judge Cooley:

A good Constitution should be beyond the reason of temporary excitement and

popular caprice or passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the thought evolved in
excitement or hot blood, but the sober second thought, which alone, if the
government is to be sale can be allowed efficiency. .... Changes in government are to
be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15,)3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281;
Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419;

From Kochier v. Hill, Vol. 15, N.W., 609, we quote:

xxx xxx xxx

It has been said that changes in the constitution may be introduced in disregard of its
provisions; that if the majority of the people desire a change the majority must be
respected, no matter how the change may be effected; and that the change, if
revolution, is peaceful resolution. ...

We fear that the advocates of this new doctrine, in a zeal to accomplish an end which
the majority of the people desire, have looked at but one phase of the question, and
have not fully considered the terrible consequences which would almost certainly
follow a recognition of the doctrine for which they contend. It may be that the
incorporation of this amendment in the constitution, even if the constitution has to be
broken to accomplish it, would not of itself produce any serious results. But if it
should be done by sanctioning the doctrine contended for, a precedent would be set
which would plague the state for all future time. A Banquo's ghost would arise at our
incantation which would not down at our bidding.

xxx xxx xxx

We ought to ponder long before we adopt a doctrine so fraught with danger to

republican institutions. ...

xxx xxx xxx

Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This section is
a portion of the bill of rights, and is as follows: 'All political power is inherent in the people.
Government is instituted for the protection, security, and benefit of of the people; and they have the
right at all times to alter or reform the same, whenever the public good may require.' Abstractly
considered, there can bye no doubt of the correctness of the propositions embraced in this suction.
These principles are older than constitutions and older than governments. The people did not derive
the rights referred to by on the constitution. and, in their nature, thee are such that the people cannot
surrender them ... .

2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on
October 16, 1976 for the purpose, among other things, of amending certain provisions of the 1973
Constitution are null and void as they contravene the express provisions on the amending process of
the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more
particularly the latter which applies during the present transition period. The Opinion of Justice
Teehankee discusses in detail this particular matter.

I would just wish to stress the point that although at present there is no by tterint National Assembly
which may propose amendments to the Constitution, the existence of a so-called "vacuum" or
"hiatus" does not justify a transgression of the constitutional provisions on the manner of amending
the fundamental law. We cannot cure one infirmity - the existence of a "vacuum" caused by the non-
convening of the interim National Assembly - with another infirmity, that is, doing violence to the
Charter.

All great mutations shake and disorder a state. Good does not necessarily succeed
evil; another evil may succeed and a worse. (Am. Law Rev. 1889, p. 311., quoted in
Ellingham v. Dye, supra, p. 15)

Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step
necessary to restore the state of normalcy in the country. To my mind, the only possible measure
that will lead our country and people to a condition of normalcy is the lifting or ending of the state of
martial law. If I am constrained to make this statement it is because so much stress was given during
the hearings of these cases on this particular point, leaving one with the impression that for
petitioners to contest the holding of the October 16 referendum-plebiscite is for them to assume a
position of blocking or installing the lifting of martial law, which I believe is unfair to the petitioners.
Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me
therefore if I had ventured to state that the simple solution to the simple solution to the present
dilemma is the lifting of martial law and the implementation of the constitutional provisions which will
usher in the parliamentary form of government ordained in the Constitution, which, as proclaimed in
Proclamation 1102, the people themselves have ratified.

If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot
escape from the pretended unfavorable consequences thereof, the only y being to set in motion the
constitutional machinery by which the supposed desired amendments may properly be adopted and
submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if we
have to maintain and preserve the system of government decreed under the fundamental Charter.
As said by Justice Enrique Fernando in Mutuc vs. Commission on Elections

... The concept of the Constitution as the fundamental law, setting forth the criterion
for the validity of any public act whether proceeding from the highest official or the
lowest funcitonary, is a postulate of our system of government. That is to manifest
fealty to the rule of law, with priority accorded to that which occupies the topmost
rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics Ours)

A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the
Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not
meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the people
for the general good by tistlercoitaitt restraints of law.3 . The true question before Us is is one of
power. Does the incumbent President of the Philippines possess constituent powers? Again, the
negative answer is explained in detail in the dissenting opinion of Justice Teehankee.

Respondents would justify the incumbent President's exercise of constituent powers on theory that
he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs.
Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that although in my
separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the
incumbent President legislative powers, I qualified my statement as follows:

.... As to, whether, or not, this unlimited legislative qqqjwwel of the President
continues by exist even after the ratification of the Constitution is a matter which I am
not ready to concede at the moment, and which at any rate I believe is not essential
in resolving this Petition for reasons to be given later. Nonetheless, I hold the view
that the President is empowered to issue proclamations, orders, decrees, etc. to
carry out and implement the objectives of the proclamation of martial law be it under
the 1935 or 1973 Constitution, and for the orderly and efficient functioning of the
government, its instrumentalities, and agencies. This grant of legislative power is
necessary to fill up a vacuum during the transition period when the interim National
Assembly is not yet convened and functioning, for otherwise, there will be a
disruption of official functions resulting in a collapse of the government and of the
existing social order. (62 SCRA, pp. 275,347)

I believe it is not disputed that legislative power is essentially different from constituent power; one
does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains
provisions in this regard. This is well-explained in Justice Teehankee's Opinion. The state of
necessity brought about by the current political situation, invoked by the respondents, provides no
source of power to propose amendments to the existing Constitution. Must we "bend the Constitution
to suit the law of the hour or cure its defects "by inflicting upon it a wound which nothing can heal
commit one assault after the other "until all respect for the fundamental law is lost and the powers of
government are just what those in authority please to call them?'"5 Or can we now ignore what this
Court, speaking through Justice Barredo, said in Tolentino vs. Comelec:

... let those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly by order to attain some laudable
objective bear in mind that someday somehow others with purportedly more laudable
objectives may take advantages of the precedent in continue the destruction of the
Constitution, making those who laid down the precedent of justifying deviations from
the requirements of the Constitution the victims of their own folly. 6

Respondents emphatically assert that the final word is the people's word and that ultimately it is in
the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia
argument that it is so, let it be an expression of the will of the people a normal political situation and
not under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al., supra, a
referendum (and now a plebiscite) held under a regime of martial law can be of no far reaching
significance because it is being accomplished under an atmosphere or climate of fear as it entails a
wide area of curtailment and infringement of individual rights, such as, human liberty, property rights,
rights of free expression and assembly, protection against unreasonable searches and seizures,
liberty of abode and of travel, and so on.

4. The other issues such as the sufficiency and proper submission of the proposed amendments for
ratification by the people are expounded in Justice Teehankee's Opinion. I wish to stress indeed that
it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim
National Assembly and its substitution with an "interim Batasang Pambansa their in by in Proposed
amendment No. 6 will permit or allow the concentration of power in one man - the Executive - Prime
Minister or President or whatever you may call him - for it gives him expressly (which the 1973
Constitution or the 1935 Constitution does not) legislative powers even during the existence of the
appropriate legislative body, dependent solely on the executive's judgment on the existence of a
grave emergency or a threat or imminence thereof **

I must be forgiven if, not concerned with the present, I am haunted however by what can happen in
the future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates
full, mature, sober deliberation of the people but which they can do only in a climate of freedom
without the restraints of martial law. I close, remembering what Claro M. Recto, President of the
Constitutional Convention which drafted the 1935 Philippine Constitution, once said: .

... Nor is it enough that our people possess a written constitution in order that their
government may be called constitutional. To be deserving of this name, and to drive
away all lanirer of anarchy as well as of dictatorship whether by one man or a few, it
is necessary that both the government authorities and the people faithfully observe
and obey the constitution, and that the citizens be duly conversant not only with their
rights but also with their duties...7

Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this
reminder; the grave and perilous task of halting transgressions and vindicating cherished rights is
reposed mainly oil the Judiciary and therefore let the Courts be the vestal keepers of the purity and
sanctity of our Constitution.' On the basis of the foregoing, I vote to declare Presidential Decrees
Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof.

CONCEPCION JR., J., concurring:

I vote for the dismissal of the petitions.

1. The issue is not political and therefore justiciable.

The term "political question", as this Court has previously defined, refers to those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with the issues dependent upon the wisdom, not legality, of a particular
measure.1

Here, the question raised is whether the President has authority to propose to the people
amendments to the Constitution which the petitioners claim is vested solely upon the National
Assembly, the constitutional convention called for the purpose, and the by the National Assembly.
This is not a political question since it involves the determination of conflicting claims of authority
under the constitution.

In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of
Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is
essentially justiciable, not political, and hence, subject to judicial review.

In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position regarding its
jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent assembly,
as well as those of a constitutional convention called for the purpose of proposing amendments to
the constitution. Insofar as observance of constitutional provisions on the procedure for amending
the constitution is concerned, the issue is cognizable by this Court under its powers of judicial
review.

2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help
resolve the issue. It is to be noted that under the 1973 Constitution, an interim National Assembly
was organized to bring about an orderly transition from the presidential to the parliamentary system
of government.' The people, however, probably distrustful of the members who are old time
politicians and constitutional delegates who had voted themselves by to membership in the interim
National Assembly, voted against the convening of the said interim assembly for at least seven
years thus creating a political stalemate and a consequent delay' in the transformation of the
government into the parliamentary system. To resolve the impasse, the President, at the instance of
the barangays and sanggunian assemblies through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and replacing the by interim National Assembly
with another interim body truly representative of the people in a reformed society, issued Presidential
Decree No. 991, on September 2, 1976, calling for a national referendum on October -16, 1976 to
ascertain the wishes of the people as to the ways and means that may be available to attain the
objective; providing for a period of educational and information campaign on the issues; and
establishing the mechanics and manner for holding thereof. But the people, through their barangays,
addressed resolutions to the Batasang Bayan, expressing their desire to have the constitution
amended, thus prompting the President to issue Presidential Decree No. 1033, stating the questions
to @ submitted to the people in the referendum-plebiscite on October 16,1976.

As will be seen, the authority to amend the Constitution was removed from the interim National
Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from the
people who are the repository of all political powers, their authority to amend the Constitution
through the means they have adopted, aside from those mentioned in the Constitution, cannot be
gainsaid. Not much reflection is also needed to show that the President did not exercise his martial
law legislative powers when he proposed the amendments to the Constitution. He was merely acting
as an instrument to carry out the will of the people. Neither could he convene the interim National
Assembly, as suggested by the petitioners, without doing violence to the people's will expressed
overwhelmingly when they decided against convening the interim assembly for at least seven years.

3. The period granted to the people to consider the proposed amendments is reasonably long and
enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required the
barangays to hold assemblies or meetings to discuss and debate on the referendum questions,
which in fact they have been doing. Considering that the proposed amendments came from the
representatives of the people themselves, the people must have already formed a decision by this
time on what stand to take on the proposed amendments come the day for the plebiscite. Besides,
the Constitution itself requires the holding of a plebiscite for the ratification of an amendment not
later than three (3) months after the approval of such amendment or revision but without setting a
definite period within which such plebiscite shall not be held. From this I can only conclude that the
framers of the Constitution desired that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.